Yesterday, ESPN announced that they are suspending host Jemele Hill for two weeks for “a second violation of our social media guidelines.” A spokesperson for the network told Deadspin that the latest violation was regarding a tweet from Hill regarding a potential boycott of sponsors who advertise with the NFL’s Dallas Cowboys, in the wake of team owner Jerry Jones threatening to bench players who don’t stand for the national anthem.
Another television personality weighed in on the matter on Monday. Judge Greg Mathis, host of the “Judge Mathis” program, talked to TMZ about Hill’s situation. Judge Mathis, who besides being a TV host is a retired judge with Michigan’s 36th District Court, said that if Hill sued ESPN over her suspension she’d probably win, but it may not be worth the damage to her reputation, likening the situation to Colin Kaepernick, who is unemployed after starting the whole trend of kneeling during the anthem last season..
While Mathis didn’t go too deep with his legal analysis, though, what he did say was … well, questionable at best.
“If it violates policy of ESPN, then perhaps ESPN has a policy that’s unconstitutional,” Mathis said. He again referred to the Constitution later, saying that when NFL owner decided not to hire Kaepernick, who became a free agent in the off-season, they were “discriminating against him and his First Amendment rights. Earlier in the interview, Mathis also cited the First Amendment, claiming that when Jerry Jones issued his ultimatum for his players, he too was encroaching on players’ First Amendment rights.
Here’s the thing: this is not a First Amendment or constitutional issue. The constitutional right to free speech only prevents the government from restricting people’s speech, not private employers. You’d think a judge would know this. There’s nothing wrong with a company setting guidelines for employee conduct.
As it turns out though, while Mathis’ line of reasoning may be a little off, his conclusion may be correct. As LawNewz‘s Colin Kalmbacher wrote after Hill’s previous controversial tweet (about President Trump being a white supremacist), Connecticut (where ESPN is based) case law protects employees from being punished for speech “pursuant to official job duties on certain matters of significant public interest.” While the phrase “certain matters” may be open to interpretation, the NFL/national anthem issue is certainly of significant public interest, and as it’s a sports-related issue and Hill is a sports anchor, her speech could be viewed as being “pursuant to official job duties.” Of course, ESPN could argue that the comment was made from Hill’s personal Twitter account, not during her performance as a host on “SportsCenter.”