ESPN cannot escape NFL player’s privacy suit

September 2, 2016

New York Giants defensive end Jason Pierre-Paul

New York Giants defensive end Jason Pierre-Paul

An ESPN reporter’s tweet of an NFL player’s medical chart may not be entitled to First Amendment protection if the records were unlawfully obtained or the disclosure exceeded the limits of common decency, a Florida federal court has said.

U.S. District Court Judge Marcia G. Cooke of the Southern District of Florida ruled that New York Giants player Jason Pierre-Paul properly pleaded facts that, if true, could mean ESPN and its reporter Adam Schefter improperly disclosed private information by posting Pierre-Paul’s medical records to Twitter.

Judge Cooke’s order partially denying the defendants’ motion to dismiss provides Pierre-Paul a chance to prove his invasion of privacy suit.

Schefter on July 8, 2015, “electronically blasted” to his then nearly 4 million Twitter followers a photograph of Pierre-Paul’s confidential medical chart, according to the original complaint filed in Florida state court.

The chart showed that Pierre-Paul’s finger had been amputated after a July 4, 2015, fireworks accident, the complaint said.

The complaint also alleges Schefter obtained Pierre-Paul’s medical chart from Public Health Trust of Miami-Dade County without his permission.

After removing the case to federal court, Bristol, Connecticut-based ESPN and Schefter moved to dismiss, arguing that the medical chart, like the fact of Pierre-Paul’s surgery, was a matter of public concern protected by the First Amendment.

Judge Cooke disagreed, finding that Pierre-Paul’s medical records were not publicly available and that he did not consent to their use.

There is a limit “anchored to ‘common decency’” on disclosing private facts, the judge explained, citing a doctrine set out in the Restatement (Second) of Torts (1977).

If the facts show disclosure of Pierre-Paul’s private medical records breached that limit, the chart is not a matter of public concern entitled to First Amendment protection, according to the court.

The court’s decision to allow Pierre-Paul’s invasion of privacy claim to proceed was influenced by the possibility that Schefter may have acquired the athlete’s medical records unlawfully.

The court will allow Pierre-Paul the opportunity to prove that Schefter’s tweet is not entitled to First Amendment protection.

The court also denied ESPN’s request for attorney fees under Florida’s Anti-SLAPP statute, Fla. Stat. § 768.295, which awards attorney fees to parties that successfully defend against SLAPP, or strategic lawsuits against public participation.

However, the court dismissed the player’s claim that Schefter violated Florida’s medical privacy law, Fla. Stat. § 456.057, finding that the statute applies to health care providers who disseminate medical information to third parties but not to journalists.

Pierre-Paul v. ESPN Inc. et al., No. 16-cv-21156, order entered (S.D. Fla. Aug. 29, 2016).

Related Court Document on Westlaw:

Removal notice: 2016 WL 4533988