Thursday, April 21, 2016

Curt Schilling, ESPN, Free Speech and quirky state laws

As you have probably already heard, ESPN fired Curt Schilling - presumably for sharing a Facebook post (screen grab here) that mocked transgender people and commenting that "A man is a man no matter what they call themselves" and "Now you need laws telling us differently? Pathetic."

Any free speech issues? I covered a lot of this ground in an article regarding Phil Robertson (the Duck Dynasty guy) and his dust-up with A&E. In short, the First Amendment generally only applies to state actors. It has some teeth in the context of public employment... but not so much with ESPN.
ESPN logo used in commentary
on ESPN.

But wait... ESPN is in Connecticut! Why does that matter? Because Connecticut has this law that prohibits "discipline or discharge" for exercising First Amendment rights, and it applies to private employers! However, that law comes with a pretty big caveat: "provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer."

As my favorite Connecticut employment law blogger, Dan Schwartz, noted on Twitter:
Did Schilling's post address a matter of public concern? I think so - I mean, he specifically references "laws" and he's presumably referring to the public debate over North Carolina's bathroom law. Was he disrupting the workplace? I don't work there, so I don't know - seems at least plausible. We'll see how this plays out.

Of course, these issues may also be addressed in an individual contract between the parties. Also, I suppose it's possible that Schilling is based somewhere else and is not covered by the CT law.