A legal eagle’s look at the Jemele Hill suspension, ESPN’s position and what students need to know about “the law” vs. “the contract.”

ESPN journalist Jemele Hill was suspended Monday for two weeks after she spoke out on Twitter once again on issues of racism and discrimination. In mid-September, Hill used Twitter to call the president a racist and stated that President Trump was “the most ignorant, offensive president” of her lifetime. More recently, she offered advice on social media to people who opposed Cowboys owner Jerry Jones’ stand on benching players who “disrespect the flag.”

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Rather than dealing with the issue of if Hill was right or wrong from a content perspective, I wanted to look at the legal issues surrounding this in hopes of providing guidance to journalism students. As we mentioned in both books, the First Amendment, freedom of speech and punishment for speech are all often misunderstood. With that in mind, I contacted Daxton “Chip” Stewart, an expert in free speech and the First Amendment to walk through this situation.

Stewart, an associate dean and associate professor of media law in the Bob Schieffer College of Communication at Texas Christian University, said he has discussed the Hill situation in class, both in terms of the law and the societal role of journalists. He said the first thing he often has to explain is that Hill’s suspension is not a violation of her First Amendment rights.

“This is a private company and a private deal,” Stewart said. “ESPN isn’t the government, so there’s no First Amendment issue here at all.”

He said broader free speech issues are of interest here, such as how a private organization allows its employees to engage in speech activities, but non-governmental institutions like ESPN can set policies that limit speech.

“If I violated a (similar) policy and if TCU punished me, I wouldn’t have a case,” Stewart said. “This is a private contract matter… In this case, ESPN has a social media policy and if she breaches it, she can be punished.”

Even if she were tweeting on her own time or adding a disclaimer about her tweets not representing anyone but her, Stewart said this wouldn’t matter as far as ESPN and the suspension go in relation to the First Amendment. That said, other rules and laws protect individuals rights that are outlined in the First Amendment.

“When you get beyond speech, there are federal anti-discrimination laws,” he said. “ESPN can’t say they’re only going to hire white men for jobs or something like that because that would clearly show a violation.”

“You can’t exclude people because of race, ethnicity or gender or ESPN couldn’t force you to go to a church as a part of your job,” he added, noting some exceptions to the “church” situation exist for people employed by some religious organizations.

The simple fact of employment, Stewart said, is that most people are “at-will” employees, which means they can be fired for almost any reason that isn’t clearly outlined as illegal in those anti-discrimination laws.

“You can be fired for any reason as long as it’s not discrimination or because you’re a whistle-blower or similar reasons in law,” he said. “A private university, for example, could fire you for doing something it didn’t like. Even if we think it’s a valid free speech activity, they can fire you because they just don’t renew your contract.”

That said, the “it’s not illegal but can still cause you problems” angle the book outlines for situations like this can cut both ways. Journalists have come to Hill’s defense and Stewart said the ramifications of this move are bad for ESPN.

“Nothing good is going to come from this for ESPN,” he said. “It’s really really bad optics and a really bad practice but it’s not illegal. They can absolutely make this choice.”

“Some of these sorts of incidents have a lot of collateral damage,” he added. “A lot of employees might be afraid to talk about it… They don’t want to be next. It’s a job. It’s a great job and who wouldn’t want to work for ESPN? But when ESPN disciplines an employee for something like this, a lot of people are going to clam up.”

SO HERE ARE THREE TAKEAWAYS FOR STUDENTS:

  1. Know the rules or ask before you break them: Jemele Hill is a smart, qualified journalist who knew what she was doing both times she sent the troublesome tweets. Other people don’t always know what a policy says or what a rule allows for. Thus, if you are considering a job somewhere and you have already built your social media brand, it would behoove you to figure out what the rules are and if you are willing to abide by them.
    “Anticipate potential conflicts and talk to your boss,” Stewart said. “See if you can get clearance. At least have that discussion or that argument ahead of time. If they ask you to sacrifice more than you are willing to give, you might decide to walk away from the job.”
  2. You are in an impossible situation: One of the big points Stewart wanted to make was that students going into the field will find themselves stuck between a rock and a hard place when it comes to this kind of thing. Media organizations hire people who have a voice and a point of view because they engage the audience and draw a following. However, when the wind blows the other way, things can get dicey.
    “You need to engage with your readers and social media is part of your brand and the news media encourage this,” he said. “They expect you to be a person and an interesting person, but don’t you dare step into controversial topics. It’s an impossible line. It’s like ‘Be authentic, but not on these things.'”
    “Your voice is important until people start complaining and then we want you to stop using your voice until we tell you to use it again…” he added. “It places an unfair expectation on students going out there but never the less it is the expectation.”
  3. Ask yourself, “Is this the hill I’m willing to die on?” Hill not only understands the topic upon which she is speaking, but she lives it as well. Stewart noted that her voice and her perspective on broader issues has great value to her employer and likely contributed to her hiring. She also understood this was a controversial topic and one that would likely put her at odds with her employer.
    She did it anyway and took the suspension.
    She hasn’t said as much, but I’d gather she felt the juice was worth the squeeze on this and that this topic mattered more than whatever ESPN would do to her.
    Not every topic on Twitter, every post on Facebook or every photo on Instagram fits that bill. When deciding if it’s worth it to take that stand, know beforehand what the punitive outcomes are likely to be and if you can live with them if they happen. Also, know how you would feel if you didn’t take that stand and how you would feel having failed to do so.
    Weigh the consequences and then make your decision.

 

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