Do sports commentators enjoy a legal right to opine on controversial political and social issues without fear of retribution by their employer? Or is “stick to sports” an approach that might help those commentators keep their jobs?
The answers to these questions are important for ESPN SportsCenter co-host Jemele Hill, whom ESPN suspended on Monday for two weeks on account of her second violation of the network’s social media policy.
As detailed by Richard Deitsch, Hill on Sunday tweeted that fans ought to boycott companies that advertise with the Dallas Cowboys. She also encouraged fans to “stop watching” the Cowboys and stop “buying their merchandise.” Further, Hill observed that “lot of black & brown folks are Cowboys fans” which prompted her to ask, “What if they turned their backs on [the Cowboys]?” Hill also charged that Cowboys owner Jerry Jones “had created a problem for his players, specifically the black ones.” The problem, according to Hill, is that if these players “don’t kneel [to the national anthem], some will seem them as sellouts.”
Hill’s remarks followed Jones announcing that he will sit Cowboys players who do not stand for the national anthem. Hill’s remarks also did not occur in a vacuum. ESPN is in the midst of a 10-year contract with the NFL in which the network will pay a total of $15.2 billion for the right to broadcast NFL games. For Hill to discourage fans from watching NFL games runs counter to the goals of her employer—and that of ESPN’s advertisers, partners and sponsors. These companies have a vested financial stake in seeing an expansion, not contraction, of NFL television viewership.
Hill’s previous violation of ESPN’s social media policy occurred last month when she tweeted that President Donald Trump was a “bigot” and a “white supremacist.” Hill’s tweets led the White House to call for Hill’s firing. In response, Hill acknowledged “regret” since her tweets “painted ESPN in an unfair light.” Hill, however, stood by the substance of her tweets about Trump, who days later opened the door for sports commentators to engage in political speech by encouraging NFL owners to fire players who protest the national anthem. Hill insisted her tweets reflected her “personal beliefs” about the president.
The First Amendment, Hill’s employment contract and ESPN’s workplace Policies
To be clear, Hill enjoys a First Amendment right to express political and social views without sanction by the government. Even if her tweets aggravate President Trump and other government officials, we live in a society where those views are insulated from prosecution.
On the other hand, Hill’s First Amendment right does not insulate her from sanction by her private sector employer. The capacity of ESPN to sanction Hill for engaging in commentary derives from a variety of legal documents, including her employment contract with ESPN. While Hill’s employment contract is a private record, it most likely contains terms that obligate Hill to adhere to the company’s social media policy and accompanying policies. Also, the contract almost certainly authorizes ESPN to suspend or fire Hill for conduct that brings ESPN into disrepute.
ESPN’s workplace polices are thus significant in the analysis of Hill’s rights as an employee to advocate viewpoints at odds with those of her employer. ESPN has made clear to its employees that it must “avoid personal attacks and inflammatory rhetoric” and “refrain from overt partisanship.” Such directives expressly apply to ESPN employees when they use social media platforms. Regardless of whether one agrees or disagrees with the substance of Hill’s commentary, it is clear that ESPN has directed its employees to avoid expressing views that might compromise the network’s business objectives.
Along those lines, while Hill is a journalist and trained to uncover the truth in her reporting, she works for a for-profit media company with deep financial connections to the NFL, its teams and various advertisers. Hill thus knows that offering the unvarnished truth (at least the unvarnished truth as seen through her eyes) might in certain situations run afoul of her employer’s fiduciary interests. If Hill regarded such an arrangement as untenable, she presumably could have sought employment with another media company. Instead, she remained with ESPN and thus accepted the advantages and disadvantages of working for a company with ties to persons and businesses reported on by sports journalists.
ESPN has not refrained from suspending and in some cases firing other broadcasters whose viewpoints generate controversy or take positions adverse to the company’s interests.
Last year, ESPN fired broadcaster Curt Schilling after the former Red Sox star shared a meme on Twitter that mocked transgender people. In April, ESPN anchor Linda Cohn was reportedly spoken to by senior management after the veteran broadcaster opined on a radio show that her employer had moved too far away from sports and into culture issues, “overpaid” to broadcast NBA games and failed to recognize the extent to which Netflix and other streaming services would erode ESPN’s subscription base. For different reasons, Schilling and Cohn engaged in conduct that ESPN found objectionable. ESPN’s employment contracts and workplace policies authorized the company to take corrective action against both employees.
Connecticut law might complicate the analysis
So does ESPN have every right to suspend and potentially fire Hill for her tweets?
Probably, but there is one caveat.
ESPN is a Connecticut-based company. Its employees may thus be able to avail themselves of Connecticut laws that could advantage them in any workplace disputes. One such law is Connecticut General Statute 31-51q, which is titled “Liability of employer for discipline or discharge of employee on account of employee’s exercise of certain constitutional rights.” This law applies to both public and private sector employees and instructs that employers are forbidden from disciplining or firing employees on account of those employees engaging in speech protected by the First Amendment. Hill’s tweets about President Trump and the Cowboys are clearly protected by the First Amendment.
Unfortunately for Hill and other ESPN employees who are disciplined for their tweets and public statements, the Connecticut law is dramatically limited by its own qualifying language: the law only protects the employee if the employee’s speech “does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.” Given that Hill’s tweets allegedly violate ESPN’s workplace policies and also threaten to damage ESPN’s business relationships with the NFL and ESPN sponsors, ESPN could most likely show that Hill’s tweets have both interfered with her job performance and harmed her relationship with ESPN.
Further advantaging ESPN in any potential legal dispute with Hill, it’s possible that Hill’s employment contract requires her to arbitrate any workplace grievances before she is able turn to the courts. ESPN, which has offices in other states including Florida, New York, North Carolina and Washington, might also structure its employment contracts to ensure that any workplace disputes are governed by the laws of a state that isn’t Connecticut.
SI.com will keep you updated any developments in the Hill-ESPN dispute.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.