Last July 4, New York Giants defensive end Jason Pierre-Paul had his right index finger amputated after a fireworks accident.
Within days of the incident, ESPN journalist Adam Scheffer obtained Pierre-Paul's medical records and posted a screenshot of them on Twitter. That move prompted Pierre-Paul to sue Scheffer as well as ESPN in Florida. The athlete alleges that they violated his privacy, and also violated a Florida medical-privacy law.
Now, ESPN is firing back. The company is asking U.S. District Court Judge Marcia Cooke in Miami to dismiss the case and award it attorneys' fees. ESPN argues in papers filed in federal court in Miami late last week that the medial-privacy statute applies to health care professionals, but not to the media. ESPN also says it has a free-speech right to publish truthful information about matters of public concern.
Florida's health care privacy law imposes broad confidentiality requirements on doctors, hospitals and other professionals. But the law also prohibits a "third party" who receives information in a medical record from disclosing it without the patient's consent.
ESPN says that the term "third party" in the statute only applies to people who have the right to demand medical information -- like attorneys in lawsuits, people who work in poison control centers, law enforcement personnel and scientific researchers.
"The statute does not, and constitutionally could not, impose any obligations on members of the general public who may learn or obtain medical information from a health care provider," ESPN argues in a motion late last week.
The company adds that the Supreme Court ruled in 1979 that news outlets have a free-speech right to publish truthful information about matters of public concern -- even if a state law appears to mandate confidentiality.
ESPN also is urging the judge to dismiss Pierre-Paul's claim that the company violated his rights by publishing "private" facts about him.
Pierre-Paul asserted in his lawsuit that even though the amputation "may have been of public concern," the picture of his medical records was not.
ESPN calls that distinction "groundless."
"Plaintiff does not even allege that the photos contain any private information about him that is materially different from the news about the amputation," ESPN argues. "They amount to no more than photographs of words on a piece of paper and a computer screen stating that Plaintiff’s finger had been amputated."
ESPN is asking Cooke to award it attorneys' fees under Florida's anti-SLAPP (strategic litigation against public participation) law, which aims to protect free speech. That law prohibits people from bringing lawsuits based on speech in connection with public issues, and says people who bring those cases must pay defendants' legal bills.
The dispute raises some of the same questions as Gawker's battle with celebrity Hulk Hogan, who sued the company for posting excerpts of a sex tape. Gawker also argued it had a First Amendment right to publish truthful information. A jury ruled against Gawker in that case and ordered the company and its founder to pay a total of $140 million.
But the cases are different in a few key respects, including that the Gawker-Hogan battle was in front of a state judge, not a federal judge. That's significant, given that federal courts have sided with the media in other privacy disputes. In fact, a federal judge in Florida sided with Gawker early in the case, ruling that the clip was of legitimate public interest. After that ruling, Hogan dropped the federal case and brought his lawsuit in state court.