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The Dallas Observer, its parent company New Times Inc. and others have been targeted in a $1.1 billion suit by a plaintiff who alleges the alternative weekly wrongfully disclosed his HIV-positive status, referencing him by name in a published article last December. In a motion for summary judgment filed on Aug. 20, three of the defendants seek the dismissal of the plaintiff’s petition, which several First Amendment lawyers say raises significant constitutional questions never before ruled on by a state judge in Texas. Filed in Dallas’ 192nd District Court, the three defendants’ motion asks Judge Merrill Hartman to dismiss Joe Doe v. New Times Inc., et al. (In his petition, the plaintiff does not disclose his name.) The plaintiff doesn’t dispute that he is HIV-positive; rather, his complaint is that the newspaper didn’t have the right to disclose that information without his consent. By doing so, the plaintiff contends in his petition, the Observer violated 81.103 of the Texas Health and Safety Code. Section 81.103 forbids disclosures — without a patient’s written consent — of medical test results to other parties, except certain government health agencies, and provides for recovery of damages when such disclosures occur. Historically, lawyers on both sides of the litigation agree, most attorneys have assumed the statute applied to parties in the medical and insurance industries — not media organizations. James N. Henry and Edward P. Perrin Jr., partners in Dallas’ Hallett & Perrin, filed the petition for an HIV-positive member of the Dallas-based Cathedral of Hope church. Freelance writer J.D. Sparks identified the HIV-positive member by name in the article “Fallen Angel,” published on Dec. 4, 2003. The Observer article focused on the Rev. Michael Piazza, who led the Dallas church. In addition to New Times and the Observer, the petition names as defendants Sparks and Jean Morris, a former church administrator whom Sparks cited as a source in the article. James Hemphill, a partner in Austin’s Graves Dougherty Hearon & Moody who represents New Times, the Observer and Sparks, as well as Martha Hardwick Hofmeister, who represents Morris, say their clients deny they violated 81.103. “The First Amendment gives us the right to print the truth, especially when it’s not private,” Hemphill says. Section 81.103 allows for civil penalties of not less than $5,000 and not more than $10,000 per disclosure. The Observer has a circulation of 110,000, the plaintiff alleges in his petition, which entitles him to $1.1 billion or more in damages. Moreover, Henry says the Observer continues to keep the article posted on its Web site, and he says every time the article gets a hit, his client is entitled to more damages. The Observer‘s editor, Julie Lyons, says although the “Fallen Angel” article remains posted on the weekly publication’s Web site, www.dallasobserver.com, the paper’s management considered removing it at one point. Lyons says she does not want to comment on why they decided to keep it posted. In their motion for summary judgment, New Times, the Observer and Sparks say the newspaper did not release a test result and that they published “true, non-private, lawfully obtained information,” and therefore are protected by the First Amendment. But plaintiff’s lawyer Henry says, “I think they are misreading the statute as to how test results are defined. The statute is not just referring to a piece of paper on which a test result is printed.” In its summary judgment, the three defendants further maintain that the HIV-positive plaintiff’s identity was “far from ‘private.’” Specifically, attached to the motion are exhibits that include a cover and liner for CDs featuring “Positive Voices,” a choral group to which the plaintiff belonged. One of the CD covers includes a photograph of the plaintiff, and he is referred to by name in the liner seven times. Jennifer Poe, a senior attorney with Hallett & Perrin who also represents the plaintiff, says the previous disclosure is irrelevant. She notes that 81.103 allows an individual to choose to whom and when to disclose his or her test results. New Times, the Observer and Sparks further claim in the motion that the Texas Legislature never intended for the statute to apply to the media. Rather, the Legislature was targeting parties with access to “actual HIV blood test results such as medical laboratories.” If the Legislature wanted to target the media, Hemphill says, lawmakers certainly weren’t thinking about a fine applying to every single newspaper on the stand. “Our position is that the court should not even reach that question because there is no liability. But if the court does, certainly it is not the Legislature’s intention for multimillion-dollar lawsuits against newspapers,” Hemphill says. Poe stresses, however, that her client is concerned with the principle of the matter, not just the large sum cited in the damages section of his petition. Even if a court agrees with the defendants’ position that the publication of the Observer article constitutes only one disclosure — not 110,000 — subject to a fine of $5,000 to $10,000, Poe says, her client will proceed with his suit for that dwarfed sum. Hofmeister, who represents Morris, the former church administrator, says her client has engaged in settlement talks, although she declines to elaborate further. “Jean is not the primary target of this lawsuit,” Hofmeister says. A partner in Dallas’ Shackelford, Melton & McKinley, Hofmeister says that Texas lawmakers had no intention when they drafted 81.103 for it to apply to the media or sources. And she says Doe, given his alleged previous disclosures of his HIV status, is “not the perfect plaintiff” to test the new application of the statute. APPLY TO THE MEDIA? Three First Amendment lawyers not involved in the suit say they believe an appeals court will eventually have to decide whether 81.103 is constitutionally deficient. “It’s kind of a screwy deal,” says Bill Ogden, a partner in Houston’s Ogden, Gibson, White, Broocks & Longoria. “This statute was not intended to apply to the news media. To the extent that someone intends to apply it to the media, it is unconstitutional, and it violates the First Amendment.” Thomas Leatherbury, a partner in the Dallas office of Vinson & Elkins who practices media law, agrees. “The case relies on a very broad statute that the plaintiffs are trying to push to the limit, and it could raise constitutional questions,” he says. Historically, courts nationwide have ruled repeatedly that newspapers have a constitutional right to publish lawfully obtained, truthful information of public interest. There are exceptions. Ogden notes that a juvenile’s privacy rights are considered heightened and, therefore, rise above public interest. Could it be that 81.103 affords that same kind of protection for HIV-positive individuals? “It is a very broad statute,” Leatherbury says, noting that a plaintiffs lawyer could advance that argument. But Leatherbury and Ogden believe that ultimately the constitutional protections of free speech will serve the Observer well if the public interest was at stake in releasing the plaintiff’s identity. New Times, the Observer and Sparks argue in their summary judgment motion that the public interest was at stake. The December 2003 article, attached as an exhibit to their motion, generally focused on Piazza’s church stewardship. In the course of evaluating his performance, Sparks also discussed in the article alleged insurance irregularities at the church involving attempts to put volunteers on Cathedral of Hope’s group health plan — allegations church officials denied. “I considered the issue of putting unpaid volunteers on the church’s health insurance policy to be a potential case of insurance misconduct by a tax-exempt entity and a matter of legitimate public interest and concern,” Patrick Williams, the Observer‘s managing editor and the final editor on the December 2003 article, states in his affidavit, filed with the summary judgment motion. An exchange of e-mails between then-church administrator Morris and Piazza arguing about the plaintiff’s employment status also is attached to the motion. In the e-mails, Morris identifies the plaintiff as a volunteer, and Piazza describes him as a full-time staff member who does not receive a salary. Henry alleges the article misrepresented his client as a volunteer of the church. Writer Sparks counters by saying, “Everything I put in that article was accurate to the best of my knowledge.” But Henry says at the time the plaintiff was added to the insurance rolls at Cathedral of Hope, he was a paid employee. However, in his petition, Doe does not assert any allegations about factual errors in the Observer article. Asked why he has not pursued any claim related to an alleged factual error in the story, Henry does not rule out the possibility that he will pursue a defamation claim in the future and says, “The focus for our lawsuit is that you can’t disclose someone’s test results and that’s the focus of our lawsuit right now.”

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