Last Thursday morning James Bhandary-Alexander, the staff attorney for New Haven Legal Assistance, sent an email note to this column on ESPN commentator Jemele Hill, and what ESPN might face should it attempt disciplinary action on Hill that involved dismissal. His note came a couple of days after White House press secretary Sarah Huckabee Sanders said that tweets by Hill calling President Donald Trump a “white supremacist” among other things would be a “fireable offense,” according to Sanders (and thus the White House).
Bhandary-Alexander said that he believed if ESPN attempted to fire Hill it would likely violate Connecticut law. Said Bhandary-Alexander. “We have a statute (Conn. Gen. Stat. 31-51q) that explicitly protects employees—even in the private sector—from retaliation for any First Amendment protected speech. In other words, we enjoy free speech protections vis-à-vis both the government and our private employers. The statute protects our rights as employees to express ourselves on matters of public concern, such as whether the President is a racist. This hasn’t been mentioned but would certainly limit ESPN’s ability to discipline her without violating the law. I use this statute often to protect low-wage workers attempting to assert their rights, but it protects her, too.”
It was an interesting email—The New York Timeshad a piece on it on Friday—and I reached out to SI’s legal analyst Michael McCann, the founding director of the Sports and Entertainment Law Institute (SELI) at the University of New Hampshire School of Law, where he is also a tenured professor of law, on how he saw things.
SI: Does a Connecticut law protect Hill from being disciplined or even fired over her comments about Trump?
MM: The short answer is we don’t know and can’t know unless we reviewed Hill’s employment contract with ESPN.
Allow me to explain.
We know that Connecticut has enacted a statute titled, “Liability of employer for discipline or discharge of employee on account of employee’s exercise of certain constitutional rights.” This statute expresses that employers can’t discipline or fire employees on account of those employees exercising their First Amendment right to free speech. The statute is clearly on-point: the First Amendment protected Hill’s tweets and other critical remarks about Trump from sanction by the government.
This same Connecticut statue, however, contains a sizable exception: it only protects the employee if “such activity [by employee] does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.”
So does the exception apply here? To answer that we need to ascertain how Hill’s “job performance” and “working relationship” are measured by ESPN.
I assume Hill has an employment contract with ESPN and that her contract details how ESPN evaluates both job performance and relationship with management and co-workers. I also assume that Hill's contract, like other broadcasters' contracts, contains language that says, in so many words, ESPN retains the right to discipline Hill or even terminate its contract with Hill if Hill brings ESPN into disrepute, as determined by ESPN.
ESPN could argue the “working relationship” between ESPN and Hill was damaged by her tweets describing Trump as a “bigot” and a “white supremacist.” The tweets sparked a public controversy that ESPN clearly did not welcome—the network described Hill’s statements as “inappropriate.” The tweets also led to sharp rebuke by the President himself as well as by persons in his administration.
Along those lines, Hill’s use of Twitter appears to have violated ESPN’s social media policy, at least based on a statement by ESPN president John Skipper. Hill’s “job performance” presumably includes her willingness to follow company policy. To that end, even Hill acknowledged that her remarks “painted ESPN in an unfair light.”
As a side note, Hill's contract with ESPN could contain two clauses that would prevent or at least slow application of the Connecticut law: there might be a mandatory arbitration provision that would force Hill to arbitrate any grievances before going to court, and there might be a “choice of law” provision stipulating that any disputes arise under the laws of New York or some other state that isn’t Connecticut.
It’s also worth acknowledging an obvious but important point: ESPN, which has been around for 38 years, is undoubtedly aware of this Connecticut law and any other law that might impact the network’s relationship with its employees. It stands to reason that the network’s attorneys likely structure employment contracts to minimize the potential application of laws that could prove meddlesome.
SI: Does ESPN firing Curt Schilling alter the network’s legal position with Hill?
MM: I don’t think so.
I understand the argument that ESPN has applied a double standard. The network has not disciplined Hill in any kind of meaningful way for denigrating the President whereas ESPN fired Schilling last year for sharing a meme on Twitter that ridiculed transgender people. ESPN clearly regarded both instances as reflecting inappropriate employee behavior, but in only instance was the employee punished.
There are a few factors to consider.
First, remember that ESPN is a private company, not a governmental agency. It doesn’t “have to” treat arguably analogous situations the same way. ESPN isn’t performing a public service—“sports broadcasting” isn’t a regulated utility. While ESPN is to some extent regulated by the FCC, it is a cable channel and not scrutinized by the government in the same way as over-the-air channels. Like other private companies, ESPN’s decisions on personnel can certainly be questioned and criticized, but so long as the company avoids committing unlawful discrimination and breaching employment contracts, it engages in lawful discretion over personnel matters.
Second, ESPN would likely assert that the Hill and Schilling situations are not analogous. Most obviously, while both situations implicate politics, they concern different topics that ESPN management might view differently. Also, Schilling made other controversial remarks prior to sharing the trans meme and he was suspended in 2015. A human resources official might contend that Schilling had already been warned about his use of social media before being fired.
Third, if Schilling believed that he was unlawfully fired, he could sue ESPN. He could sue for breach of contract and/or invoke the Connecticut law described above. In other words, to extent Schilling was wronged, the legal process could be used to remedy it.