2017-09-15 18:33:02
If ESPN Wants to Discipline Jemele Hill, She Might Have Law on Her Side

18:33, September 15 249 0

Two days after the White House press secretary Sarah Huckabee Sanders said that tweets by an ESPN host disparaging President Trump were a “fireable offense,” she added on Friday that the network “should hold anchors to a fair and consistent standard.”

Any disciplining of the host, Jemele Hill, however, might be out of legal bounds for ESPN. The network is based in Bristol, Conn., and a Connecticut statute provides free-speech protections beyond the First Amendment, making it illegal for ESPN to punish Hill, according to some labor lawyers.

“Jemele Hill was speaking about an important issue of public concern, one of the most crucial issues of current political life, and the statute was intended to protect people who say things just like what she said,” said James Bhandary-Alexander, a lawyer at the New Haven Legal Assistance Association who frequently represents workers who are disciplined by employers for their speech.

Hill posted a series of derogatory comments about the president on Monday, calling him a white supremacist. ESPN issued a statement that said her comments did not reflect the views of the company, and that she recognized that they were inappropriate. But the issue has become part of the intensely charged political atmosphere now gripping the country and raised questions as to whether a sports commentator should be restrained from making such remarks publicly.

ESPN, which has veered further into programmed shows heavy on debate and opinion, has empowered, if not directed, its hosts to be provocative on subjects beyond sports, especially culture and society. Some of the opinions have brought sharp and widespread criticism, and the network has struggled to find a consistent approach in responding.

The Connecticut Constitution’s free-speech provision largely mirrors the United States Constitution’s and is concerned with actions of the government, not private employers. Connecticut is one of many at-will states in this country, which means private employers can generally (with some exceptions) fire employees for any reason, or for no reason at all.

But Connecticut also has General Statute 31-51q, which reads in part that any employer, including private employers, “who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution” is liable for damages caused “by such discipline or discharge.”

“That statute would prohibit ESPN from disciplining or discharging her based on that speech,” said Todd Steigman, a partner at Madsen, Prestley and Parenteau who was part of the team that tried a major case defining the scope of the statute.

ESPN declined to make a company lawyer available for an interview, and Hill’s agent did not immediately respond to a request for comment.

In a 2006 case, Garcetti v. Ceballos, the Supreme Court limited First Amendment protections for government employees. When government employees speak in the capacity of their job, and not as a private citizen, that speech is not protected.

This can be interpreted broadly, for instance, to allow a police department to fire a police officer who reports corruption, because part of a police officer’s job is to report criminal activity, and therefore his speech is not protected.

But in a 2015 case before the Connecticut Supreme Court, Trusz v. UBS Realty Investors, the court ruled that people who work in Connecticut who comment on matters of “public concern” are protected by state law, extending some speech protection for those employees even beyond the First Amendment.

Speech of “public concern” is an important concept. Hill’s tweets — regarding President Trump and his beliefs and fitness for office — are some of the most highly protected forms of speech, legal experts said. “Comments on politics is typically one of those areas that is almost always a matter of public concern” said Dan Schwartz, a partner at Shipman and Goodwin.

Not all speech of public concern is protected. The Connecticut statute spells out when employees can be disciplined or discharged for it: “Provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employee.”

Schwartz, who does not believe the statute prevents ESPN from disciplining Hill, said there is a fair argument to make that Hill’s speech interfered with her job performance. As a high-profile ESPN employee, part of her job is to attract sponsors and viewers, and her comments could have alienated them.

“If you have sponsors who are refusing to support a show, then at what point does it materially interfere with performance?” Schwartz said. That “has to be part” of ESPN’s ability to look at what on-air staff does.

On Wednesday night, after Hill said in a statement that she regretted that her public comments “painted ESPN in an unfair light,” the network released its own statement saying that Hill had apologized for her Tweets, and that the company accepted that apology.

On Friday morning, President Trump weighed in. “ESPN is paying a really big price for its politics (and bad programming),” he tweeted. “People are dumping it in RECORD numbers. Apologize for untruth!”

The state statute says that employees in Connecticut who are subject to “discipline or discharge” because of their speech may be owed damages. “Discharge” in this case is clear — ESPN did not fire Hill. But what constitutes discipline is murkier.

Bhandary-Alexander said he believed that a warning from a boss constituted discipline.

“We are in a moment where it is more important than ever that working people be able to express themselves politically,” he said.

At least one other case at ESPN mirrors Hill’s. Last year, Curt Schilling, an ESPN baseball analyst, was fired after sharing a Facebook post responding to the so-called bathroom bill in North Carolina. Many found the post to be hostile to transgender people.

But like Hill’s case, Schilling’s speech was of a political nature, on one of the most resonant issues of the day, and the speech was made on his personal Facebook account in his capacity as a private citizen.

Schilling’s lawyer declined to discuss Schilling’s firing.