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New York Giants defensive end Jason Pierre-Paul has a warning for a Florida judge.
The NFL star is currently pursuing ESPN and star reporter Adam Schefter over a tweet that included Pierre-Paul’s medical chart showing an amputated right finger as a result of a July 4 celebration last year. In response to claims of having invaded Pierre-Paul’s privacy and having violated Florida’s medical privacy statute, ESPN is asserting that the report constituted a matter of public concern and is protected under the First Amendment.
“If the hospitalization of a public figure constituted authorization for the publication of that person’s medical records, then the right to privacy would be non-existent,” Pierre-Paul’s attorneys say in court papers filed on Thursday. “Indeed, public figures would hesitate to seek medical treatment, or be less likely to share certain information with health care professionals, out of fear that hospital personnel would sell their medical records to those who want to profit from the publication thereof (as ESPN did here), thereby negatively impacting their health. That is not the purpose of the First Amendment.”
This legal dispute focuses on the manner in which Schefter elected to break news about Pierre-Paul’s injuries.
ESPN looks to use Florida’s recently passed SLAPP statute to quash the lawsuit and recover attorney fees. Disney’s sports network argues that it’s within bounds to corroborate reporting with photos of hospital records.
Some might conclude that NFL stars like Pierre-Paul command multi-million dollar contracts thanks to public attention, but in Pierre-Paul’s court papers, it’s the media that’s framed as the true beneficiary.
“ESPN only exists because of athletes, such as Plaintiff, and the public’s desire to watch them perform,” states the Pierre-Paul response to ESPN’s attempt to dismiss the lawsuit. “Without athletes, ESPN has no content. One would expect ESPN to protect athletes while, at the same time, responsibly reporting on their activities, both on and off the field. Yet, with respect to Plaintiff, ESPN has done the exact opposite.”
The curious retort hardly ends there. For example, although Pierre-Paul is suing over an alleged privacy invasion, he’s suggesting that Shefter should have been a bit more probing in a different circumstance.
“Amazingly, after the firestorm of public backlash for his intentional invasion of Plaintiff’s privacy, Schefter still had not learned his lesson about journalistic integrity,” states the court papers. “Just last month, Schefter interviewed NFL player Greg Hardy about his alleged domestic abuse, and the interview was later aired on ESPN. Both Schefter and ESPN were widely criticized, including by one of ESPN’s female on-air hosts, for giving Hardy a platform to deny his role as an abuser… without any challenging questions from Schefter.”
Ultimately, whether or not this case proceeds will turn on whether a judge accepts Pierre-Paul’s contention that he has established a prima facie case. The plaintiff argues that what’s a legitimate matter of public concern is a fact-sensitive inquiry. He believes he’s entitled to investigate whether ESPN or Schefter paid hospital personnel and what revenues they enjoyed as a result.
The issue of what exactly Pierre-Paul is suing over hardly seems settled. Is it the tweet? Perhaps, but Pierre-Paul puts emphasis not merely on what was published, but also the alleged way ESPN’s reporter “illegally obtained the Chart from the Hospital.” (Indeed, Pierre-Paul is suggesting criminal conduct, yet there’s been no hint of any investigation into Schefter by law enforcement.) That’s important because in the 1989 Supreme Court case, Florida Star v. B.J.F., dealing with police reports published verbatim, the high court held, “We hold only that, where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” Additionally, in the 2001 Supreme Court decision, Bartnicki v. Vopper, dealing with intercepted cell phone conversations, the justices felt it important that media defendants’ “access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.”
For support on the idea that ESPN and Schefter violated criminal law, Pierre-Paul leans on HIPAA and Florida’s medical privacy law meant to prevent disclosures of confidential medical records. But Pierre-Paul’s view of the these laws will undoubtedly be controversial because while most people (including ESPN) assume such statutes are limited to health care providers, he argues there’s no such limitation. It will be up to a judge to decide whether Pierre-Paul is over-reading what his attorneys are here italicizing from Florida’s law: “Records owners are responsible for maintaining a record of all disclosures of information contained in the medical record to a third party, including the purpose of the disclosure request.”
ESPN argues that a broad interpretation that reporters are subject to such disclosure laws is “absurd,” to which Pierre-Paul responds, “ESPN can address that concern with the Legislature.”
The defendant told the judge that if Pierre-Paul’s position holds, it will mean that journalists can’t report about a Florida governor who conceals from the public that he is gravely ill.
“To begin with, ESPN’s hypothetical does not include the manner by which the journalist obtained that information, which as noted above is relevant,” states the response. “Putting that aside, no one would dispute the newsworthiness of a governor’s inability to perform his or her executive functions.”
So yes, newsworthiness is subjective. The question now is what a judge decides to rule as a matter of law. Will he let it move forward? Pierre-Paul’s attorneys have high hopes, picking up something we flagged in our last report about this lawsuit.
Here’s how the NFL star, represented by John Lukacs and Kevin Fritz, ends his court papers: “With respect to lack of merit in general, it is noted that ESPN’s counsel, Levine Sullivan Koch & Schulz LLP, also represents the website Gawker in Bollea v. Clem et al. In that case, Gawker posted a video of the plaintiff, who is professionally known as Hulk Hogan, engaged in sexual activity in a bedroom. Gawker knew that the plaintiff had been secretly filmed and that he objected to the publication of the video’s release, but Gawker posted it anyway, and then tried to defend the ensuing invasion of privacy lawsuit on the grounds that the video was newsworthy. Its motion to dismiss was denied and, years later, a jury awarded the plaintiff $140 million. Despite those results, the Levine Sullivan firm now proffers the same arguments to this Court.”
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