Last Thursday morning James Bhandary-Alexander, the staff attorney for New Haven Legal Assistance, sent an email note to this column on ESPN commentator Jemele Hill, and what ESPN might face should it attempt disciplinary action on Hill that involved dismissal. His note came a couple of days after White House press secretary Sarah Huckabee Sanders said that tweets by Hill calling President Donald Trump a “white supremacist” among other things would be a “fireable offense,” according to Sanders (and thus the White House).
Bhandary-Alexander said that he believed if ESPN attempted to fire Hill it would likely violate Connecticut law. Said Bhandary-Alexander. “We have a statute (Conn. Gen. Stat. 31-51q) that explicitly protects employees—even in the private sector—from retaliation for any First Amendment protected speech. In other words, we enjoy free speech protections vis-à-vis both the government and our private employers. The statute protects our rights as employees to express ourselves on matters of public concern, such as whether the President is a racist. This hasn’t been mentioned but would certainly limit ESPN’s ability to discipline her without violating the law. I use this statute often to protect low-wage workers attempting to assert their rights, but it protects her, too.”
It was an interesting email—The New York Times had a piece on it on Friday—and I reached out to SI’s legal analyst Michael McCann, the founding director of the Sports and Entertainment Law Institute (SELI) at the University of New Hampshire School of Law, where he is also a tenured professor of law, on how he saw things.
SI: Does a Connecticut law protect Hill from being disciplined or even fired over her comments about Trump?
MM: The short answer is we don’t know and can’t know unless we reviewed Hill’s employment contract with ESPN.
Allow me to explain.
We know that Connecticut has enacted a statute titled, “Liability of employer for discipline or discharge of employee on account of employee’s exercise of certain constitutional rights.” This statute expresses that employers can’t discipline or fire employees on account of those employees exercising their First Amendment right to free speech. The statute is clearly on-point: the First Amendment protected Hill’s tweets and other critical remarks about Trump from sanction by the government.
This same Connecticut statue, however, contains a sizable exception: it only protects the employee if “such activity [by employee] does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.”
So does the exception apply here? To answer that we need to ascertain how Hill’s “job performance” and “working relationship” are measured by ESPN.
