It also appeared intrusive. How many reporters tweet out someone’s medical charts? Twitter users sensed a moment to showcase their awareness of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which imposes significant patient confidentiality protections.
That’s just a taste of the backlash. And it suggests just how ignorant many folks are about the First Amendment protections enjoyed by a free press in the United States. Questions regarding the legality of particularly penetrating instances of journalistic enterprise tend to crop up now and again. In April 2013, for instance, Mother Jones published audio from a strategy meeting of Sen. Mitch McConnell’s reelection team. Though the snippets weren’t scandalous, there was some question about the lengths to which Mother Jones had gone to fetch it. “It is our understanding that the tape was not the product of a Watergate-style bugging operation. We cannot comment beyond that,” said the magazine. (Disclosure: The wife of the Erik Wemple Blog is a Mother Jones employee.) Curtis Morrison, a freelance journalist-cum-political activist, later confessed to having made the recording as he wandered the hallways of the campaign office after an event.
The same legal principle that shielded Mother Jones in the McConnell incident should also shield ESPN in this case. The Supreme Court ruled in the important 2001 case Bartnicki v. Vopper that news organizations have great protections in just these situations. In the case, a radio host, Frederick Vopper, played on air a tape of union leaders saying some colorful things: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . . To blow off their front porches, we’ll have to do some work on some of those guys,” said one. One of the union people sued Vopper on the grounds that he had to know that that recording was obtained illegally.
The court sided with Vopper. “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” wrote Justice John Paul Stevens.
Protection for the media isn’t open-ended. News outlets cannot assist leakers in carrying out illegal recordings or snatching medical records in violation of HIPAA. But if they passively receive the information, they’re all set. “As long as ESPN did nothing to procure the documents or aid and abet in their procurement — as long as its hands are clean, as it were — ESPN is in the free and clear,” notes via e-mail Clay Calvert, a University of Florida professor often consulted by the Erik Wemple Blog.
“As for a hospital employee who leaked the documents, that’s where HIPAA comes in,” writes Calvert.
Last night we asked ESPN how it obtained the Pierre-Paul document. Spokesman Josh Krulewitz responded, “HIPAA does not apply to news organizations.”
Legal questions aside, there are all kinds of discussions about the ethical aspects of ESPN’s reporting. Huh? The star player on an NFL franchise suffers injuries that could mar his career. Details are scarce. He has a finger amputated — a condition that will come to light on his first day of training camp, at the very latest. A reporter obtains a document proving what went down. Publish it!