What Are the Employee’s Social Media Rights?
Yesterday, ESPN suspended host Jemele Hill for claiming this is the second violation of ESPN’s social media rules. Hill tweeted Sunday:
CNN’s statement on her removal refers to her September tweet in which President Trump was identified as a white supremacist:
Her removal raises some questions, in particular whether ESPN has the right to punish an employee for speaking out on social media on political issues, albeit on political issues that overlap with corporate interests.
“The premise is that you don’t have First Amendment protection in private sector employment,” says David Wachtel, attorney for Trister, Ross, Schadler & Gold in Washington. “You could be fired for being active on social media.”
However, he notes that companies must have social media policies that are part of employee manuals, so if you tweet but still comply with the policies, you could have a contract violation case if you get fired. (Whether you have the courage to do so is another matter.)
“Social media policies usually include something like, ‘You don’t say you speak for us if we don’t say that you speak for us.” This is what caused the explosion on the hill for the first time. And they can also say that you can’t say anything that hurts business – and ESPN can say that if you say boycott sponsors, you say boycott ESPN, Wachtel says.
In September, following a tweet from white supremacists, the New York Times ran an article about the Connecticut statute (based in Bristol, Connecticut) that “protects free speech beyond the First Amendment, making it illegal to punish ESPN Hill. according to some labor lawyers ”. He also notes that ESPN encourages hosts to comment provocatively on cultural issues.
However, the law contains a caveat: “Provided that such activities do not have a material or significant impact on the employee’s good faith or the working relationship between employee and employee.” An argument can be made that Hill’s tweet is indeed materially in the way.
So, what can an employee do to protect themselves (other than not speaking out publicly on any cultural or political issue at all?) Wachtel says: “You can protect yourself by following social media policies. If the policy allows you [to speak freely], you may have several different legal arguments [if you are disciplined], such as breach of contract. The best vaccine is to follow social media policies as if it were a contract. “
As such, it is impossible to predict whether Jemel Hill will hold back her political views now that she has been removed. For some employees, the right to speak freely about pressing issues of public interest may be more valuable than work.