One of the most interesting ongoing stories in sports journalism is the lawsuit between Jason Pierre-Paul and Adam Schefter.
Schefter, you'll remember, tweeted a picture of Pierre-Paul's X-rays after the Giants' star blew off part of his hand with fireworks. Recently, a Florida court dismissed ESPN's motion to dismiss the case.
On its own, that means nothing. It simply means the case will continue in courts, that it isn't being thrown out before it starts. But this is a case that has the potential to reshape the perception and practice of sports journalism.
Writing about the case on Deadspin, Kevin Draper compared the lawsuit to the one that Pete Thiel used to drive Gawker into bankruptcy.
Now, as the powerful seek to operate unchecked, the courts are opening up the question of whether it’s even legal to publish true things about public figures.
The core issue of the case lies in two areas of media law — privacy and newsgathering.
ESPN's defense is pretty straightforward. I wrote about it when the story first broke. Essentially, the argument is that Shefter did not break the law by publishing the picture. Even if the picture was illegally proivided to Schefter, he can still publish it. The Supreme Court has held that journalists can publish material that was illegally obtained by a third party — provided the journalists themselves did not break the law to obtain it. This comes from the case Bartnicki v. Vopper. This is the case that provides the New York Times with a legal defense for publishing Donald Trump's tax returns a few weeks ago.
Except this is an invasion of privacy lawsuit. The general area that Pierre-Paul is suing under is the publication of private facts. This is where a plaintiff claims that the defendant published private, intimate facts that would be highly embarassing to a reasonable person and are not of legitimate public concern. (emphasis added)
Defenses for this tort include if the information was lawfully obtained (a question, given that they are private medical records), public records (not the case here) or of public significance.
And here's where it gets interesting.
Is a football player's injury of public significance?
For us in the sports world, this doesn't even seem like a question. Of course it is. Jason-Pierre Paul was a star player on a major-market team. His blowing off several fingers in a freak fireworks accident is clearly signficant. Publishing documents is an important part of journalism, and ruling against it could lead to a chilling effect among reporters. From Draper:
If Pierre-Paul’s charts are off limits, or even conceivably off limits, where does the boundary fall now? The mere existence of the case puts journalists on notice that facts and documents, the basic materials of the job, might be unsafe to use. Forty years of what seemed to be established media law are suddenly being reopened.
But will the Florida courts agree? Will they see publication of the picture not as an essential act of journalism but as a careless, reckless move? Will they see this injury not as something of public significance but rather as a trifling story about sports — something from the toy department?
(This is, in a sense, the core of the issue in the Hogan-Gawker case. Was Hulk Hogan's sex tape a matter of legitimate public concern?)
In a sense, this case could give legal weight to the question of how "signifcant" sports news and sports journalism area. If a federal court rules that sports news is not "publicly significant" enough to warrent protection under privacy law, that is potentially frightning. That could have a massive chilling effect on future sports journalism.