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Jemele Hill and the First Amendment

| September 15, 2017

By Steven J.J. Weisman
Legal Editor


BOSTON — As talk hosts whether you are a political talker or a sports talker, such as Jemele Hill of ESPN, you are constantly exercising your rights under the First Amendment which we all support.  If so, why has there been so much controversy about Hill’s tweets where in a matter of five minutes on Monday she tweeted:

“Donald Trump is a white supremacist who has largely surrounded himself w/other white supremacists.”

“Trump is the most ignorant, offensive president of my lifetime.  His rise is a direct result of white supremacy. Period.”

“He has surrounded himself with white supremacists – no they are not ‘alt right’ – and you want me to believe he isn’t a white supremacist.”

One thing I will not be exploring in this column is whether the facts support Hill’s allegations.  Yes, President Trump did say that there were “some very fine people on both sides” in Charlottesville.  However, he also has a cabinet that includes an African American, an Indian woman, an Asian woman and Jews, hardly the cabinet of a bigot.  The reason, however, that I will not be discussing whether or not what Jemele Hill said was true is because whether her statements are true or false is absolutely irrelevant for our purposes.

The First Amendment protects individuals from government interference with the right of free speech.  It offers no protection from an employer taking disciplinary action which could even include termination of the employee who exercises his or her right of free speech in a manner objectionable to the employer.

The response to Hill’s comments by Press Secretary Huckabee Sanders was to characterize the comments as a “fireable offense.”

The response of ESPN the day after Hills’ tweets was to issue the following statement.

“The comments on Twitter from Jemele Hill regarding the President do not represent the position of ESPN.  We have addressed this with Jemele and she recognizes her actions were inappropriate.”

A day later Hill also issued her own tweet:

“My comments on Twitter expressed my personal beliefs.  My regret is that my comments and the public way I made them painted ESPN in an unfair light.  My respect for the company and my colleagues remains unconditional.”

Hill had large numbers of both supporters and critics of her initial tweets with some demanding that she be fired and pointing to the firing by ESPN of baseball analyst Curt Schilling after he shared  Facebook posting critical of transgender rights.  In terminating Schilling, ESPN referred to Schilling’s conduct “unacceptable.”  Some have said that this is indicative of a double standard at ESPN, but what is being missed is that Schilling was a repeat offender and had been warned repeatedly about refraining from political comments.

The company policy at ESPN permits employees a wide berth in discussing political issues when they are sports related, however, employees are cautioned to “avoid personal attacks and inflammatory rhetoric.”  And that is the company’s right.  The plain, hard fact is regardless of what your employment is, with some minor exceptions mostly related to labor organizing, there is no freedom of speech in the workplace protected by the First Amendment.  Your employer is also free to discipline you for comments made outside of the work environment on social media or anywhere.

An employer has the right to project whatever public position it desires and before we are too quick to criticize ESPN for being too liberal or “politically correct” whatever that amorphous term may mean, just go back to the night that Jemele Hill made her tweets.  The analyst on Monday Night Football was the always entertaining , Rex Ryan a vocal Trump supporter and the show’s theme song was again sung by Hank Williams, Jr. who in the past compared then President Obama to Adolph Hitler.

Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website  He can be e-mailed at:  Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.

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Category: Legal