[WSJ] ESPN Anchor Sage Steele Sues Network, Alleging Violation of Free-Speech Rights

clearly there's no problem here. ESPN and Disney are private companies, they can do anything they want. Plus Sage Steele obviously violated her employment TOS.

https://www.wsj.com/articles/espn-a...-speech-rights-11651104160?mod=hp_featst_pos3

ESPN Anchor Sage Steele Sues Network, Alleging Violation of Free-Speech Rights
Lawsuit centers on Ms. Steele’s comments about Covid-19, ex-President Obama in a podcast interview last year
By Joe Flint
Updated April 27, 2022 8:26 pm ET

ESPN anchor Sage Steele sued the network and its parent, Walt Disney Co. DIS -0.48% , alleging the company retaliated against her for comments she made in a podcast interview, breaching her contract and violating her free-speech rights.

In comments last September on a podcast hosted by former National Football League quarterback Jay Cutler, Ms. Steele touched on political and social topics, questioning Covid-19 vaccine mandates and former President Barack Obama’s decision to identify as Black instead of biracial.

After Ms. Steele’s remarks drew criticism in the press and on social media, ESPN forced her to issue an apology and temporarily benched her, according to the suit, which was served in Connecticut, where the network is based.

ESPN also retaliated by taking away prime assignments and failing to stop bullying and harassment by Ms. Steele’s colleagues, the suit alleges.

The complaint says ESPN’s handling of Ms. Steele’s situation was an example of selective enforcement of a network policy that bars news personnel from taking positions on political or social issues.

ESPN has “violated Connecticut law and Steele’s rights to free speech based upon a faulty understanding of her comments and a nonexistent, unenforced workplace policy that serves as nothing more than pretext,” according to the suit, which seeks unspecified damages.

In a statement, ESPN said, “Sage remains a valued contributor on some of ESPN’s highest profile content, including the recent Masters telecasts and anchoring our noon SportsCenter.”

The suit also said ESPN took its actions based on “inaccurate third-party accounts of Steele’s comments, and that the network did not immediately review the actual comments or the context in which they were made.”

“Sage is standing up to corporate America to ensure employees don’t get their rights trampled on or their opinions silenced,” her lawyer, Bryan Freedman, said in a statement.

The suit pointed to a provision in Connecticut law that it said prohibits companies from disciplining employees for exercising their First Amendment rights, as long as their statements don’t materially interfere with their performance or working relationship with the company.

Ms. Steele’s podcast interview last September was on “Uncut with Jay Cutler,” a program that isn’t affiliated with ESPN or Disney. The suit said Ms. Steele appeared as a private citizen and wasn’t speaking for her employer.

Ms. Steele told Mr. Cutler that she had recently gotten the Covid-19 vaccine because it was required by Disney and called the mandate “sick” and “scary to me in many ways.” She said she complied to keep her job and support her family.

The veteran “SportsCenter” anchor also talked about her decision to identify as biracial. During the interview with Mr. Cutler, Ms. Steele said she thought it was fascinating that Mr. Obama chose to identify as Black despite having been raised by his white mother and grandmother, while his Black father “was nowhere to be found.”

“You do you. I’m going to do me,” Ms. Steele said in the interview.

Soon after the interview aired on Sept. 29, a backlash against Ms. Steele began on social media over her remarks. On Oct. 4, Ms. Steele was told she would be “sidelined” or “taking a break,” which she saw as a euphemism for a suspension, according to the complaint. ESPN said Ms. Steele wasn’t suspended.

Ms. Steele alleged she was forced to issue an apology that said, “I know my recent comments created controversy for the company, and I apologize. We are in the midst of an extremely challenging time that impacts all of us, and it’s more critical than ever that we communicate constructively and thoughtfully.”

After returning to work a few weeks later, Ms. Steele was taken off major assignments including coverage of the New York City Marathon and hosting the network’s annual summit celebrating women and diverse voices, the suit said.

In February of this year, Ms. Steele sent a letter to ESPN’s human resources department complaining about her treatment and was subsequently offered the assignment to co-host “The Masters Tournament,” according to the suit.

In the suit, Ms. Steele points to examples of other ESPN colleagues making political comments on-air and on social media without facing punishment.

This isn’t the first time Ms. Steele has clashed with her superiors and colleagues. In 2020 she complained to ESPN management that she believed she was excluded from a special on race because some of her Black colleagues didn’t view her as an authentic voice for the Black community.

At the time, an ESPN spokesman denied that the decision not to use Ms. Steele in the special was due to her views or a campaign by her colleagues to undermine her.
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https://reason.com/volokh/2022/04/3...-free-speech-rights-a-quick-sense-of-the-law/

[Eugene Volokh] Sage Steele Suing ESPN for Violating Her Free Speech Rights: A Quick Sense of the Law
by Eugene Volokh
4.30.2022 2:53 PM

NPR (Dustin Jones) reports on the lawsuit, Steele v. ESPN Productions, Inc. (Conn. Super. Ct.):

During Steele's appearance on former NFL quarterback Jay Cutler's podcast, which aired Sept. 29, 2021, Cutler asked why she had a Band-Aid on her arm. She explained that she had just gotten her COVID-19 vaccine in compliance with Disney's corporate mandate, even though she personally felt the company's requirement to do so was out of line.

"I respect everyone's decision. I really do. But to mandate it is sick, and it's scary to me in many ways," Steele said on the podcast. "But I have a job, a job that I love and, frankly, a job that I need."

On the topic of race, Steele explained she was proud to come from a family that is both Black and white, the court filing said. As the conversation continued, Steele recalled her 2014 appearance on The View, where she was asked why she didn't simply identify herself as a Black, similar to Obama. She said she was fascinated that the former president had identified solely as Black despite having been raised by his white mother and grandmother."
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Steele claims that she was "suspended from on-air appearances," though ESPN denies there was a suspension; she also claims that she was "punish[ed]" by being "remov[ed] from prime assignments, including coverage of the New York City Marathon, the Rose Parade, and the 12th Annual ESPNW Summit, which Steele had hosted and emceed since its inception in 2010," as well as being "forced to issue a humiliating public apology … and [being] subjected to bullying and harassment by colleagues while ESPN and Disney did nothing to stop it." She also alleges that she "appeared on the podcast as a private citizen on her day off, and made it clear during the interview that she was speaking on her own behalf, not on behalf of ESPN or Disney."

My useful correspondent Sammy Straightman asks:

[1.] How come this Sage Steele is suing ESPN for violating her First Amendment rights? I'm well acquainted with the state action doctrine, under which the Bill of Rights only applies to the government (federal, state, or local), not private companies!

So true, Sammy, so true—but only half the picture. Many states (and some cities and counties) have special statutes that limit private employers' ability to retaliate against their employees based on the employees' speech or political activity (see my 2012 article canvassing such statutes, which differ widely in their text). Indeed, Connecticut, where ESPN is apparently headquartered and where Steele works, is one such; here's the relevant statute:

[No employer may] discipline or discharge [an employee] on account of the exercise by such employee of rights guaranteed by the First Amendment …, provided suchactivity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer ….
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Connecticut courts have also read this statute as borrowing into the statute two First Amendment principles developed by the Supreme Court as to government employee speech: (1) Speech is excluded from this protection if it's on a matter of merely "private concern." (2) Speech is excluded and also is unprotected if it's said by an employee as part of her duties, unless—and here Connecticut precedent departs from federal cases—it involves "comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety," in which case it's protected even if it's part of her duties.

That's kind of like religious discrimination, by the way: The Free Exercise Clause and the Equal Protection Clause only apply to the government, but if a private employer fires you because of your religion, it will probably be liable under statutes that apply similar nondiscrimination principles to private employers. (The one difference is that for religious discrimination, you can sue under federal and state statutes; generally speaking, private firing based on speech is barred only by some state and local laws, not federal law.)

This is why, by the way, careful commentators try to distinguish "the First Amendment," which is a legal rule binding American government entities (as to religion as well as speech), from "free speech" or "religious freedom," which are broader sets of principles that may apply to others as well. In practice, I realize that people use the terms interchangeably, and that's normally a tolerable sort of imprecision. But here it's important both to understand the limits on the scope of the First Amendment, and the fact that there are protections for free speech beyond the First Amendment.

[2.] Wait a sec: How can an employer be required to keep employees whose views it disagrees with, or who are just more trouble than they're worth?

A perfectly plausible policy argument, and in fact many states take the view that employers shouldn't be restrained this way. But many other states, including Connecticut, have concluded that employee speech should indeed be protected from such retaliation—again, just as employee religious practice is protected from employer retaliation by federal law (even when the employer or coworkers or customers think this practice is bad).

Part of the reason might be that, if free speech is important for protecting democratic self-government, or the marketplace of ideas, or the search for truth, the threat of private employer retaliation (and not just of government retaliation) may undermine those socially valuable features of free speech. The theory of these private employee protection laws, right or wrong, is that the employers' private property rights should yield in this situation, as they do with regard to employees' religious freedom rights (and some other rights).

[3.] OK, but can't ESPN just say that Steele was saying controversial things, and this "substantially or materially interfere[d] with the employee's bona fide job performance or the working relationship between the employee and the employer"?

Yes, it can say that; and if the court agrees, then Steele would lose. Under this statute, as under the First Amendment rules applicable to the government as employer (on which this statute is based), a form of "heckler's veto" is indeed allowed: If coworkers or customers get upset enough about an employee's speech, the employee can be fired.

But that's generally a factual question, which is left for the factfinder—a jury, or a judge if the parties choose a bench trial—to decide (at least unless the evidence is so clear that a judge can conclude that any reasonable jury could come to only one conclusion). If it turns out that there was only a modest amount of criticism, then the factfinder may well conclude that the statement didn't "substantially or materially" affect Steele's performance or her working relationship with the employer.

Nor do I think that ESPN can say that their employees are always on the job, and always speaking on behalf of ESPN. The premise of the Connecticut statute, and of the government employee speech protections on which it's based, is that even people who are known to be someone's employees, and whose credibility stems from their employment, are entitled to speak on their own behalf. Nothing Steele said suggested that she was speaking on behalf of ESPN, and indeed her criticism of ESPN made clear that she wasn't acting as an ESPN spokeswoman. And of course listeners are used to knowing that often employees are expressing their own personal views, not their employers'.
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more

 

conclusion:

[4.] What about the requirement of "discipline"—would the alleged suspension from various appearances and assignment qualify?

Not so clear, and I couldn't find any Connecticut binding appellate precedent on the subject. But here's a passage from a trial court opinion that other trial courts have cited:

Although in some situations a transfer to a new assignment may not be discipline, where that transfer is to a position that is so objectively undesirable it could be considered a demotion, then such a transfer could be "discipline." Likewise, a removal of duties is an affirmative act that could be considered a demotion in certain circumstances…. [And a]lthough in a strict sense these acts might be an "omission," the defendant's failure to investigate threats made toward the plaintiff and protect him from those wishing to do him harm could be "discipline" because employers generally are supposed to protect employees from threatening or harassing coworkers…. [Section] 31–51q was clearly intended to protect an employee from de facto demotion and retaliatory employer actions that diminish the happiness and status of an employee.
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Not squarely on point factually, and in any event not binding precedent, but it should give a sense of the arguments the parties will be making as to "discipline."

[5.] Wait a sec: What about ESPN's own First Amendment rights? Doesn't it have the right to decide whom to select to speak for it on the air, just as the Boy Scouts have a right to decide not to select gays as Assistant Scoutmaster?

Another great question, Sammy! The answer turns out to be unsettled. Nelson v. McClatchy Newspapers, Inc. (Wash. 1997) held, by a 5-4 vote, that the First Amendment allowed a newspaper to require that its reporters not engage in political activity, notwithstanding a state statute that provided, "No employer … may discriminate against an … employee … for … in any way supporting or opposing a candidate, ballot proposition, political party, or political committee."

On the other hand, Ali v. L.A. Focus Publications (Cal. Ct. App. 2003), rejected the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies," and allowed plaintiff to go forward with his claim under California's employee political activity protection statute. And AP v. NLRB (1939) rejected (by a 5-4 vote) the Associated Press's claim of a right not to hire employees who belonged to unions; the AP's theory had been that it "must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest opportunity for any bias or prejudice personally entertained by an editorial employee to color or to distort what he writes, and that the Associated Press cannot be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees."

"The business of the Associated Press is not immune from regulation because it is an agency of the press," the Court reasoned: "The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." And while Boy Scouts v. Dale does secure the rights of groups that want to spread an ideological message to choose speakers whose conduct or identity doesn't undermine that message, it's not clear that this rationale would apply to ESPN, which I think isn't generally trying to spread any message to the public about vaccination or about racial self-identification. The Court in Dale framed the issue as "whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not 'promote homosexual conduct as a legitimate form of behavior'"; it seems unlikely that Steele's presence in the assignments she mentioned would significantly burden any particular message that ESPN is trying to send.

Moreover, even if Connecticut courts choose to follow Nelson, and allow a defendant to restrict the speech of those who speak for it pursuant to a neutral "no politics" policy, Steele alleges that other ESPN employees were allowed to express their own political views. If that's true, then it makes it harder for ESPN to rely on Nelson, which had reasoned that:

Here, TNT [The Tacoma News Tribune] implemented a code of ethics which it designed in good faith to foster the newspaper's integrity and credibility. Case law unambiguously allows a news publication to follow a code designed to limit conflicts of interest which may diminish publication credibility. TNT adopted such a code. Freedom of the press leaves such decisions to the press, not the legislature or the courts. The code is facially designed to uphold the appearance of impartiality.
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So an interesting case, I think, which I hope to follow closely.​