9:57am PT by Eriq Gardner
Ex-ESPN Analyst Argues Network Wasn't "Media Company" in Publishing "Fake Texts"
Adrienne Lawrence, who spent two years at ESPN as an on-air legal analyst, is defending the relevancy and admissibility of her allegations of decades-long misogyny at the sports network.
She's suing ESPN for allegedly permitting a hostile workplace rife with sexual harassment, and then retaliating against her after she objected to supervisors and the human resources department. Her 93-page complaint, which recounted everything from employee porn-watching habits to how the network once kept a New York City apartment that supposedly became a sex-and-drugs hotspot, was attacked by ESPN's lawyers a month ago as "stale gossip" falling short of federal pleading standards.
On Friday, Lawrence's attorneys responded to a motion to strike "unresolved lawsuits" and "collateral matters."
Her newest court brief (read here) argues that allegations of ESPN's past behavior are relevant to establishing the existence of a hostile workplace, how ESPN was on notice of unlawful conduct, that a continuing pattern of misconduct exists and Lawrence's own experiences and what supervisors tolerated.
"Defendants claim that these allegations are 'stale' and should be stricken because they took place several years ago, but the fact that this behavior has carried on for decades and has not changed renders these allegations the opposite of stale — they are fresh, highly relevant, probative of a hostile work environment and lend credence to Ms. Lawrence’s claims," states the brief.
Besides looking to narrow the focus of Lawrence's wide-ranging complaint, ESPN has also asked the judge to reject a false light claim premised on how the company reacted after she filed a discrimination charge with Connecticut authorities and a December 14 expose on ESPN culture in the Boston Globe.
Lawrence contends that she rejected sexual advances by SportsCenter anchor John Buccigross and that afterwards, he marked his territory by spreading a bogus rumor that the two were intimate. She further alleges that during this time, Buccigross sent her inappropriate text messages. After the Boston Globe reported Lawrence's allegations, ESPN issued a press release that included "portions of text messages exchanged between Ms. Lawrence and Mr. Buccigross" and stated, "[I]t's clear that they had a consensual, personal friendship that spanned months."
In ESPN's motion to strike, the defendant argues it has a constitutionally protected right to issue a statement on a matter of public concern in response to the allegations, that its statements were true and not highly offensive and that there was no malice.
ESPN filed an exhibit (see here) that presented a side-by-side comparison of texts to show they were hardly fabricated or arranged, but Lawrence insists ESPN has indeed "strategically altered text messages" and omitted stuff like "unwanted topless photos" to make it appear that she hounded him. (Here's her exhibit of the fuller text exchange.)
The bid to strike the false light claim presents a few key legal issues.
First, Lawrence argues that Connecticut's anti-SLAPP statute is not applicable in federal court. What's at stake here is whether the plaintiff must show probability of prevailing on her claim before advancing to discovery or whether she only needs to show the plausibility of her claim. Many states have enacted SLAPP statutes using the probability burden in order to curtail frivolous lawsuits designed to chill First Amendment activity. But federal courts have traditionally used the lesser standard — and plaintiffs have begun to attack SLAPP use in federal proceedings. It's an important issue — and one that could be destined for the Supreme Court.
If Lawrence can't convince this judge to join the "emerging trend" of federal courts holding that SLAPP analysis is inapplicable, she falls back on arguments why ESPN shouldn't be entitled to SLAPP protection. Lawrence argues she's not a public figure despite once being an on-air commentator and giving a quote to the Boston Globe and that the "fake texts" are not protected by any right to petition the government. She further contends that the publication of texts disseminated a falsehood to the public in an intentional and highly offensive way.
Then, there's ESPN's argument that as a media company, it's afforded free speech protection.
"Here, by contrast, ESPN was neither acting as a 'media company' nor 'reporting news' or engaging in journalism," states the brief (read here). "Indeed, ESPN’s publication of the Fake Texts did not comport with journalistic ethics or standards. See https://www.spj.org/ethicscode.asp. Rather, the statements about Ms. Lawrence and the Fake Texts were statements by a vindictive former employer, published in a press release (with no bylines, sources or objective facts) on ESPN’s press release website, ESPN Media Zone (as opposed to ESPN’s news reporting website: ESPN.com) solely for the purpose of provoking public disdain for Ms. Lawrence and garnering support for Buccigross."
Lawrence also adds that ESPN created social media bots on the very morning it released the texts to further compound the falsities. And if ESPN didn't create those bots? She adds, "Thus, the Fake Accounts are a double-edged sword: either they were created by ESPN to harm Ms. Lawrence’s reputation, or, they are strong evidence of the negative reaction to the Fake Texts and the detrimental impact they had on Ms. Lawrence’s reputation."