"Two days after the White House press secretary Sarah Huckabee Sanders said that tweets by an ESPN host disparaging President Trump were a “fireable offense,” she added on Friday that the network “should hold anchors to a fair and consistent standard.”
Any disciplining of the host, Jemele Hill, however, might be out of legal bounds for ESPN. The network is based in Bristol, Conn., and a Connecticut statute provides free-speech protections beyond the First Amendment, making it illegal for ESPN to punish Hill, according to some labor lawyers.
“Jemele Hill was speaking about an important issue of public concern, one of the most crucial issues of current political life, and the statute was intended to protect people who say things just like what she said,” said James Bhandary-Alexander, a lawyer at the New Haven Legal Assistance Association who frequently represents workers who are disciplined by employers for their speech.
Hill posted a series of derogatory comments about the president on Monday, calling him a white supremacist. ESPN issued a statement that said her comments did not reflect the views of the company, and that she recognized that they were inappropriate. But the issue has become part of the intensely charged political atmosphere now gripping the country and raised questions as to whether a sports commentator should be restrained from making such remarks publicly.
ESPN, which has veered further into programmed shows heavy on debate and opinion, has empowered, if not directed, its hosts to be provocative on subjects beyond sports, especially culture and society. Some of the opinions have brought sharp and widespread criticism, and the network has struggled to find a consistent approach in responding.
The Connecticut Constitution’s free-speech provision largely mirrors the United States Constitution’s and is concerned with actions of the government, not private employers. Connecticut is one of many at-will states in this country, which means private employers can generally (with some exceptions) fire employees for any reason, or for no reason at all.
But Connecticut also has General Statute 31-51q, which reads in part that any employer, including private employers, “who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution” is liable for damages caused “by such discipline or discharge.”
“That statute would prohibit ESPN from disciplining or discharging her based on that speech,” said Todd Steigman, a partner at Madsen, Prestley and Parenteau who was part of the team that tried a major case defining the scope of the statute."