1:43pm PT by Eriq Gardner
ESPN Settles Lawsuit Over Reporter's Tweet Revealing an NFL Star's Amputated Finger
ESPN has decided to settle up instead of further fighting a lawsuit that had the potential of impacting press freedoms. And an NFL star who suffered an embarrassing medical issue also is walking away from his multimillion-dollar privacy claims by accepting some undisclosed consideration.
The privacy claims were made by New York Giants defensive end Jason Pierre-Paul after ESPN star football reporter Adam Schefter revealed that Pierre-Paul had his right index finger amputated after a July 4 fireworks celebration in 2015. Schefter broke the news via a tweet that included a screen shot of Pierre-Paul's medical chart.
"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," stated the complaint.
In arguing for dismissal, ESPN told the judge that the tweet was "newsworthy" and that courts "have consistently recognized that a journalist is entitled to include visual evidence corroborating a report on a matter of public concern."
Pierre-Paul's attorneys countered, "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 nonexistent. 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."
The case was brought in Florida, where one circuit judge shocked some observers by allowing Hulk Hogan to take on Gawker over the publishing of a sex tape. ESPN was represented by the same law firm — Levine Sullivan Koch & Schulz — that represented Gawker, which similarly had tried to argue that it needed to show Hogan's sex tape to corroborate its existence. Ultimately, Gawker was hit with a $140 million verdict, and it declared bankruptcy.
The Gawker case, though, dealt with a prurient matter, while Pierre-Paul's lawsuit made claims over a report that impacted the NFL star's career. Pierre-Paul invoked Florida's medical privacy law, as well as the tort of invasion of privacy by public disclosure of private facts.
To survive dismissal, Pierre-Paul had to show that the medical chart was obtained unlawfully, since in 2001, in Bartnicki v. Vopper, the Supreme Court gave a pass to media defendants accused of violating a federal wiretap law, as "their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else."
Surprisingly, Pierre-Paul managed to overcome this at the pleading stage.
U.S. District Court Judge Marcia Cooke wrote, "If Schefter secured Plaintiff’s records unlawfully, Defendants may not be afforded First Amendment protections that could otherwise apply in publishing these records."
As discussed here, Cooke didn't explain how Schefter might have obtained the records unlawfully, but the judge may have been open-minded toward Pierre-Paul's argument, "Where, as here, a defendant accepts information from a source with knowledge of the illegality of the source's disclosure, the defendant has unlawfully obtained the information and is not shielded against liability for subsequent disclosure."
ESPN warned in its court papers of the dangers of accepting this legal theory.
"Forty decades of First Amendment case law has consistently held that a journalist does not unlawfully obtain information by allegedly accepting it with knowledge that a source’s disclosure was illegal," stated the network's lawyers. "And for good reason — otherwise, journalists would essentially become policemen to enforce the confidentiality obligations of their sources. Rather, in order for information to qualify as 'unlawfully obtained' for First Amendment purposes, the journalist — and not just the source — must have broken some law by the manner in which he or she physically obtained the information."
But the issue won't go up on appeal, nor will ESPN and Pierre-Paul risk trial.
ESPN put out a statement that said it "continues to firmly believe that its reporting about Mr. Pierre-Paul’s July 2015 injury, including the use of a medical chart that definitively described the seriousness of the injury and resulting treatment, was both newsworthy and journalistically appropriate. Despite their different points of view, the parties have agreed to amicably resolve their dispute rather than continue their litigation."