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.”

Hill1Hill2

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.

 

Social media: Does a politician have to “like” you?

Public employees and public officials have a lot more of their lives on display than most private citizens. The documents they produce at their job can become public records. Emails from their official work account can be sought in open record requests. Their salary is often published in governmental manuals and “watchdog” databases.

That said, they can use a non-official email like Gmail for their non-work communication and that information is as private for them as it is for anyone else. The same is true for the personal documents they create at home.

What sits in between these public and private demarcations is a fuzzy, messy gray area and social media sits right in the middle of it.

For public officials, social media has become an integral part of daily life in reaching out to their constituents and discussing important issues with the public. The president has more than 36 million followers on Twitter and his tweets have been the subject of many news stories over the first nine months of his administration. Facebook pages often run a that quasi-official line between personal information and political wrangling. However, these accounts are not “official” in the same way a .gov email address or a state paycheck would be.

Dee Hall from the Wisconsin Center for Investigative Journalism takes a deeper look at how the courts have ruled on these issues of a politician’s right to “block” users or to use social media in official capacities. (Disclosure: I worked with Dee and her husband, Andy, at the State Journal for several years and still see them from time to time at journalism functions. Also, Andy once got me to cover his shift and report on a high school graduation with the promise of a six-pack of beer from Indiana and a bucket of Tell City Pretzels. Not sure if that matters, but better to say it than not, I s’pose.)

The question is a good one: If you’re using something as a public official, should you have the right to shield its use from certain members of the public? The courts have almost famously been behind the curve in terms of dealing with technological advances, but as we see social media continue to become an almost preferred form of political communication, it will need to catch up in a hurry. Otherwise, the first filter on what we learn from our leaders will be whether or not they let us “like” or “follow” them.

“The Paragraph:” Lessons to learn from journalism’s “filthiest” screw up

Every year, as part of a final exam in my media writing class, my students read the story “Inexperience faces Green Wave Soccer.” The pedestrian look at a high school soccer team more than 20 years in the past seems like no big deal until they hit “the paragraph.”

I can always tell when they do. The class is silent until the fastest reader in the class gasps out loud. Then a few more “Whoa!” and “Pshht!” noises emerge. Eventually, they’re all saying some version of the same thing: “No way! This CANNOT be real!”

The paragraph makes obscene comments about a teenage boy on the soccer team. The writer, Nick DeLeonibus, intended it as a joke that he expected his editor to catch. Instead, the paragraph about Garrett “Bubba” Dixon made its way on to the sports page of Tennessee’s Gallatin News-Express, establishing (for me at least) what is the absolute perfect case of libel.

The story had long ago passed into myth among journalists, journalism teachers and adviser of student media. Some people just “recalled hearing” it while other “swore they had a copy of it somewhere.” Legends emerged about staffers running across lawns to steal back copies from people’s doorsteps and the publisher using the copies to build a bonfire. All we knew for sure was that this was bad.

I always kept a copy at the ready as to demonstrate that, no, this was real and, yes, there were dire consequences. One thing I didn’t know was what happened in the subsequent years since that 1997 story first hit the paper. Veteran journalist Jeff Pearlman, who has a copy of the story taped above his desk, filled in the gaps this week when he published the story for Deadspin. The story walks through how this error was made and the severe ramifications for everyone involved. If you don’t mind coarse language and you really want to know what that paragraph said, this is worth a read.

The reason I posted this and the reason I show this to my students goes beyond the shock value. The lessons behind “Inexperience Faces Green Wave Soccer” are as important today as they ever were:

  1. In journalism, you are always playing with live ammo. Gun safety experts tell you to always treat every weapon as if it is loaded. In short, you can kill someone if you’re goofing around or if you don’t keep your head on straight. In journalism, this rule is important, especially in the age of digital and social media because a) you often shoot from the hip and b) you don’t always have an editor between you and a tweet. So when you’re standing in line at the grocery store and some elderly woman is paying for a pack of Freedent gum with a third-party check, you might want to vent your anger on Twitter. Or when you get irritated at a student government official for blowing off an interview, you might feel the urge to tweet about the guy, speculating as to which farm animal he was likely cavorting with instead of showing up.

    Don’t.

    You are publishing content, just as sure as if you were pounding out that soccer story for the paper. Every time you put something out there, you take certain risks. Make sure you keep that in mind when you publish anything on any platform.

  2. If you wouldn’t want it published, don’t write it. I’m fairly confident that the majority of journalists (myself included) has gotten punchy near a deadline or frustrated while writing a headline. Thus, the instinct to write “Quote from Congressman Dipshit goes here if he ever gets off his ass and calls us back,” in a story or “Replace this shitty headline with something less shitty later” into a headline hole kicks in. We do it to just “get something in there.”
    Fight that instinct with every ounce of your being, as it’s not always a guarantee that you will remember to get back to that paragraph or that headline hole and fix it. Also, whatever you think is “so funny” at deadline probably isn’t. (A similar rule exists in broadcasting, which is to treat every microphone like it’s “hot,” in other words broadcasting to the audience. Thus, cussing on the set is highly discouraged.)
  3. Ramifications always exist for your actions. Everything you write will have a ramification of some kind, be it good or bad. Your story about the local kid winning a spelling bee will be the source of pride for parents and grandparents who will clip the story out and hang it on the refrigerator. The piece you wrote about someone being arrested for robbing the local gas station could make people wary of stopping there for gas or it could bring shame onto the robber’s family. Each action has a reaction of some kind.
    The thing that stuck with me all those years was, “Why Bubba Dixon?” The legend was the DeLeonibus had dated the kid’s sister and, as a bit of revenge for a bad break up, decided to pick on him. Another version had the editor picking on DeLeonibus for giving Dixon special treatment as a way to get back with the sister, so he decided to shock the editor by “slamming” the kid. Pearlman’s story demonstrates that neither of these were true. It just happened to be the player DeLeonibus picked out. It could have been Sean Sparkman or Travis Watson or Michael McRee as the butt of DeLeonibus’ attempt at humor.
    Instead, it was Dixon, an honor-roll student with a deeply religious background, who went through hell because of this. Why? It just was. And the ramifications were unending.
    Keep this in mind every time you ply your trade and think about what could happen as a result of your actions. Don’t let it paralyze you, but let it serve as a bit of caution before you hit the “send” button.

 

“Police said.” Two words that can save your rear end

When it comes to attributions, two complaints often emerge in my classes:

  1. They’re boring and repetitive.
  2. They’re unnecessary, as most people can figure it out for themselves.

The truth is, attributions help readers figure out who is saying what, how much faith they should put in the statements and in some cases offer the reporter protection against potential legal action. This last one is particularly true in covering crime, where reporters who quote police or court officials operate usually operate under “qualified privilege.” This means you can quote these officials without fear, even if they turn out to be wrong or change their story.

On June 9, tennis star Venus Williams was involved in a fatal car wreck in Florida. Initial media reports stated that Williams was at fault even though she hadn’t been charged or arrested. The leads on those stories both contain attributions to the police and the remainder of the stories frequently cite the police sources. Why does this matter, if it’s likely she did it and “everybody says so?” Because things can change:

FORT LAUDERDALE, Fla. — Tennis star Venus Williams legally entered an intersection but was cut off by another car, setting off a chain of events that seconds later resulted in a fatal crash with a third car, police say video released Friday shows.

Even in the above lead, the writer cites the police, who are citing the video, rather than just saying “a video released Friday shows.” This level of attribution is crucial to demonstrate not only who is making the judgment, but also that in this case the source is operating under privilege.

Students often ask me why they should attribute every statement or cite certain sources repeatedly. One conversation I recall even had the student tell me, “The guy obviously did it, so what does it matter?” The truth is, the situation can change and sometimes the only thing that will save your keester is a simple two-word phrase:

“Police said.”

To quote an old police drama, “Let’s be careful out there.”

 

“Allegedly” makes me twitchy

Saw this headline in my daily news feed today:

Allegedly

I’m a convert from the Church of “Allegedly” after I had a conversation with a legal eagle at a student media conference years ago. He explained the concept of privilege as one crime reporters should use, attributing allegations of crime to police, court officers and others who enjoyed absolute privilege in their statements. I asked about the word “allegedly” as a shortcut past that and he responded:

“The word ‘allegedly’ is why libel lawyers can afford a second yacht.”

His point, albeit hyperbolic, was that “allegedly” offers you no legal protection as a writer. It’s a thinly veiled accusation that isn’t bolstered by an official-sounding -ly word. Anyone accused of anything by anybody can be “allegedly” involved in something. If you get mad at a professor when you fail a class and you spread a rumor that he’s running an illegal arms-smuggling operation out of his campus office, he’s now an “alleged arms-smuggler.” It’s WHO is doing the alleging and the amount of factual support behind the allegation that matters.

This is why the lead on the story is a much better way to go:

An argument turned deadly Sunday night on Madison’s North Side, as a man shot his friend to death then turned the gun on himself, police said.

Attribute the information to the police (a privileged source in most places). That way, you protect yourself and support your argument in a much better way.