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Legal Analysis

Why Sarah Sanders Is Right That Name-Calling Trump Is A ‘Fireable Offense’

Apparently the White House wants ESPN commentator Jemele Hill fired for calling President Donald Trump a white supremacist in a series of tweets. White House Press Secretary Sarah Huckabee Sanders today said:

I think that’s one of the more outrageous comments that anyone could make and certainly something that I think is a fireable offense by ESPN.

On one hand, we’ve got septic-level optics of the White House suggesting personnel decisions for a private media corporation. It’s kind of gross. It crosses imagined bounds of decorum and all that. But it’s hardly surprising.

On the other hand, Sanders is absolutely correct. Calling Trump a “white supremacist” is a fireable offense and ESPN could certainly terminate Hill if they chose to do so–but not for any reason that has to do with speech or any of the laws that regulate speech. Rather, ESPN could fire Hill just because that’s the way employment works in most states.

ESPN is based out of Bristol, Connecticut. And Connecticut is considered an “at-will” employment state. LawNewz has discussed and analyzed at-will employment in the past. (See here. And here.) But to make a long story short, at-will employment is a soft euphemism for: employers can hire and fire more or less whenever they feel like it.

In Connecticut, “at-will” employment is considered a common law “right” recognized by the courts and available to both employers and employees. Leaving aside the real world implications of private employers’ effective dictatorship over their employees, this means that if ESPN decided to fire Hill, they could do so–for almost any reason.

This doesn’t mean, however, that ESPN could escape liability for firing Hill if they fired her based on her speech.

Connecticut is one of a few states to recognize a “public policy” exception to their at-will employment rules. Luckily for Hill–and other would-be sayers of controversial things–public policy in Connecticut works in favor of Free Speech. In other words, Connecticut’s constitution has stronger Free Speech protections than those provided by the Bill of Rights.

To clarify and repeat myself: the First Amendment protects subjects and citizens from government action–nothing more. If your employer fires you because you came to work and complained about “illegals” then, sorry. If you get inadvertently downsized after sarcastically giving a Nazi salute to a #MAGA-hat-wearing customer then, sorry. In both situations, the legal concept of Free Speech–codified by the First Amendment to the Constitution–isn’t going to be there for you.

However, in Trusz v. UBS Realty Investors, LLC the Connecticut Supreme Court wrote:

“[U]nder the state constitution, employee speech pursuant to official job duties on certain matters of significant public interest is protected from employer discipline in a public workplace, and [Connecticut law] extends the same protection to employee speech pursuant to official jobs duties in the private workplace.”

That ruling and others also protect the speech of private employees on matters of public interest from employer discipline outside of the workplace. Case law here would apply to Hill’s tweets because President Trump’s alleged ties to and sympathy for white supremacists are clearly a matter of public interest–and not just because Hill made them so.

The President himself has invited such discussion almost from the beginning of his political career.

Trump originally rose to prominence as the leading figure of the Birther movement against President Barack Obama. His presidential campaign began with–and was pock-marked by-derogatory comments towards Mexicans. Trump has steadfastly refused to condemn the alt-right, neo-Nazis and even–quite infamously–David Duke, the former head of the Ku Klux Klan. Furthermore, many critics have contended that his policies and rhetoric are tailored to explicitly resonate with white nationalists of various stripes.

None of the immediately above examples are offered to weigh in on the president’s alleged white supremacist sympathies one way or the other, but simply to note: Jemele Hill is not the first person to bring the subject up and her comments are in line with longstanding national discourse on President Trump and the emboldened factions of white supremacists frequently making the news since his presidential campaign began.

Thus, Hill can be fired, sure. In America, almost anything is a fireable offense. That’s how our laws work–capitalism demands that most workers are only give the most threadbare of workplace protections. But, if Hill is fired and can overcome a few distinct hurdles–namely that she was explicitly fired for tweeting about Trump, then she’d have one hell of a lawsuit against ESPN.

Under Connecticut General Statutes Section 31-51q, an employer who disciplines or discharges an employee in violation of the state constitution, “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.”

Were Hill’s comments “outrageous”? That’s debatable. But let’s be honest: ESPN isn’t about to fire their popular SportsCenter host anytime soon. The smart money is on Sanders losing her job well before Hill.

[image via screengrab]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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