ESPN Argues NFL Star's Amputated Finger Is Matter of Public Concern

Journalists are entitled to include visual evidence corroborating reports even in bad taste, argues the sports network.
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ESPN is the latest news organization to test the boundary between privacy and free speech. On Thursday, the sports network filed papers in a Florida court seeking to dismiss a lawsuit brought by New York Giants defensive end Jason Pierre-Paul over a tweet sent out by one of its reporters.

On July 8, 2015, a few days after a holiday fireworks incident left Pierre-Paul with severe injuries to his right hand, Adam Schefter broke news that the football player had his right index finger amputated. What was particularly notable was Schefter's inclusion of a screen shot of Pierre-Paul's medical chart:

This led Pierre-Paul to file a lawsuit on Feb. 24 asserting that ESPN and Schefter violated Florida's medical privacy statute as well as constituted an invasion of privacy. 

"Schefter improperly obtained Plaintiff's medical records from a hospital and then, out of a selfish desire to 'break news,' electronically blasted the records to his approximately 4 million Twitter followers and made it available to anyone worldwide with Internet access," states the complaint. "After facing a firestorm of public backlash for his intentional invasion of Plaintiff's privacy, Schefter then admitted to Sports Illustrated that he 'could have and should have done even more' to protect Plaintiff's private medical records, and that the only reason why he publicized them was out of fear that his report of the surgery would be 'questioned.'"

After having the case removed to federal court, ESPN is now pushing back, aiming to use Florida's recently passed SLAPP statute to win attorney fees for Pierre-Paul's attempt to stop activity that it believes is protected under the First Amendment. "The instant case is exactly the kind of 'SLAPP' lawsuit that the new law was passed to address," states ESPN.

The defendant's biggest argument is that Pierre-Paul's claims "cannot succeed where, as here, the subject-matter of a news report is a matter of public concern."

If those words ring a bell, it might be because Hulk Hogan and Gawker recently did battle against each other at trial in Florida over what's a privacy intrusion and what's a matter of public concern. In fact, ESPN is using the same law firm — Levine Sullivan Koch & Schulz — that represented Gawker, which unsuccessfully tried to argue that it needed to show Hogan's sex tape to corroborate its existence.

Here, ESPN tells a judge, "Plaintiff’s lawsuit proceeds on the theory that while it was legitimate for Mr. Schefter to report the details of Plaintiff’s medical treatment in the form of words contained in a news report, it was unlawful for him to definitively corroborate his reporting by also providing two photos of a small portion of a page of hospital records that contained essentially the same words. Put another way, Plaintiff’s theory is that it is fine to quote from a document, but it is unlawful to attach a photo of similar words as they appear in the document. That proposition is meritless, as a matter of both law and common sense."

Of course, there's a difference between a sex tape and a medical chart — Pierre-Paul may have been embarrassed, but his penis wasn't shown — and the fact that hospital records were used has instigated a novel claim under Florida statute §456.057, which deals with disclosures of medical information.

The problem with this claim, asserts ESPN, is that the law applies to healthcare providers, not members of the general public who receive information, and especially not members of the media. To hold otherwise, ESPN argues, would constitute an impermissible prior restraint. The defendant says that if the law applies to any "third party," that means that "if a journalist learned that Florida's governor was concealing from the public that that he was gravely ill, unable to perform his duties and was putting the state's welfare at risk, the journalist would be strictly liable if he or she reported that information."

ESPN also says that the medical privacy law doesn't create a private right of action. In other words, only the state of Florida is empowered to seek a penalty for violations.

The bigger battle to watch, given what just went down in the Hogan lawsuit, is Pierre-Paul's other claim of a public disclosure of private facts.

According to ESPN, "Courts applying the private facts tort have consistently recognized that a journalist is entitled to include visual evidence corroborating a report on a matter of public concern for exactly the reasons the Complaint alleges Mr. Schefter did so here: to 'heighten[] the report’s impact and credibility by demonstrating that the allegations rested on a firm evidentiary foundation and that [he] had access to reliable information.' This is true even if the court might think that the visual evidence was unnecessary to the report, or in bad taste.”

Here's the full motion to dismiss: