Sage Steele filed a lawsuit Thursday against ESPN, alleging that the company violated her free speech rights by retaliating against her after she made comments about the company's COVID vaccine policy. Whether the court sides with her will be determined by a few factors. We asked Anthony Fargo, a media law expert and director of the Center for Media Law and Policy Studies at Indiana University, to share his thoughts on the strengths and weaknesses of her argument.
This isn't a First Amendment issue
In her complaint, Steele argues that ESPN punished her "for expressing her views in exercise of her First Amendment rights." However, Fargo says that complaint doesn't hold up.
"The first amendment protects us against violations of our free speech by the government — federal, state, local," he said. "It does not protect us against private employers. So when the lawsuit says that ESPN violated her first amendment rights, that's actually not a correct way to phrase that. Only the government can violate her rights, at least in the legal sense. If she's talking in a more general way that they violated her free speech or punished her for free speech, that's a different matter, but it's not a First Amendment issue."
However, the state in which she filed the lawsuit — and the state in which she resides and ESPN's headquarters are located — adds a wrinkle to this case.
Connecticut's constitution adds a layer of protection
Steele cites a statute in the Connecticut state constitution that protects citizens' right to free speech above and beyond what the U.S. Constitution does.
Sec. 31-51q of the state's constitution, titled "Liability of employer for discipline or discharge of employee on account of employee's exercise of certain constitutional rights," states:
"Any employer ... 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 or section 3, 4 or 14 of article first of the Constitution of the state, 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, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages."
The lawsuit states that Steele spoke "as a private citizen expressing her own views related to her own personal experiences; at no time did she purport to speak for her employer, therefore it did not interfere with her job performance.
This provision, Fargo said, strengthens her case.
"Her case is stronger on Connecticut law than it would be in regards to federal law," he said. "The Connecticut statute that she cites says the private employers cannot discharge or discipline an employee for the exercise of their free speech rights under Connecticut's constitution."
However, Fargo said that a brief review of cases involving that statute show the Connecticut courts "almost always rule in favor of the employer."
"What the court has basically said is that if an employee is speaking out on a matter of public concern, then they have a right to do that," Fargo said. "If they're speaking in a manner that's related to their employment, that is not a first amendment or Connecticut constitution protected right."
So, what is a matter of public concern?
Was Steele speaking on a matter of public concern?
What is or is not a matter of public concern can be difficult to prove. Law Insider says a matter of public concern is "a violation of a state, federal or municipal law, regulation or ordinance; a danger to public health or safety; and/or gross mismanagement, substantial waste of funds or a clear abuse of authority."
The issue of COVID-19 vaccines — broadly speaking — is a matter of public concern.
"Sage Steele was arguing here that she was speaking on the Jay Cutler show on matters of public concern, and it appears she is correct about that, in the way that she characterized what the comments were that she made," Fargo said. "I suspect that ESPN will punch back at that and say, 'She's only on the Jay Cutler show because she works for ESPN. Otherwise, she would not be a public figure of the type who would be invited to appear on such a show.' I'm not sure that's enough of a connection to her employment to allow ESPN to punish her for comments she made outside of work hours. But that'll be something I guess the court will want to chew on. Whether this was a matter of public concern or not will probably be very key to how the court rules on this."
Fargo said ESPN could argue that discussion about its specific vaccine policy as an employer is a private concern.
"Whether an employer should require employees to get vaccines would certainly be a matter of public concern, if you were speaking in the abstract," Fargo said. "She was specifically criticizing ESPN's policy here. I think ESPN would make a fairly strong argument that that was a matter of private concern, that that was just a matter of an employment issue, and not a matter of public concern in that context."
Where does Steele have the strongest case?
In 2017, ESPN instituted a policy stating for employees that, "while allowing for political discussion on the network’s platforms, recommend connecting those comments to sports whenever possible." The network's social media policy includes the stipulation, "Do nothing that would undercut your colleagues’ work or embroil the company in unwanted controversy."
The lawsuit argues that while Steele was punished because of her political commentary, ESPN has "repeatedly ignored commentary from other employees – both before and after they penalized Steele for expressing her opinion -- that was more political and more controversial than the comments made by Steele, and that in some cases was overtly disrespectful to Steele."
The lawsuit mentions comments made on ESPN airwaves by Dan LeBatard, Jemele Hill and Elle Duncan that were political in nature but did not cause punishment from the network, as well as several instances of Steele's colleagues disparaging her on social media.
"ESPN’s inconsistency in how it treated Steele as compared to her peers demonstrates that Steele was punished not only for exercising her constitutional right to free speech but because of the content of that speech," the lawsuit says. "Steele was disciplined by her employer in violation of Connecticut state law because she exercised her First Amendment right to express opinions with which ESPN and Disney do not agree."
Fargo said: "The picture that she paints of how ESPN has enforced its policy about no political commentary, no criticism of ESPN employees on ESPN networks ... If all that is accurate, that's fairly compelling, because she's basically able to demonstrate that ESPN doesn't even follow its own guidebooks except when it's wants to. That's arbitrary behavior, which judges frown on when you're talking about contractual obligations. You can make the compelling case that she has been treated one way while other people have been treated another way. That could work in her favor quite strongly."
This article originally appeared on Indianapolis Star: Sage Steele ESPN lawsuit: IU media law expert weighs in on case chances