Freedom Of Speech Isn’t Free For Professional Athletes

Eric P. Robinson

After learning that the NHL did not fine Philadelphia Flyers forward Wayne Simmonds for directing homophobic slurs at New York Rangers forward Sean Avery, we here at The Legal Blitz wondered what First Amendment rights, if any, professional athletes had. So we called the bullpen to bring in an expert — Eric P. Robinson.

Robinson is Deputy Director of the Donald W. Reynolds Center for the Courts and Media at the University of Nevada – Reno. Robinson, a Syracuse Law School alum, was a long-time staff attorney at the Media Law Resource Center, and previously worked at the Reporters Committee for Freedom of the Press and in staff positions for federal, state and local elected officials. He has written articles for various professional and academic publications, and posts on the blog of the Citizen Media Law Project at Harvard University and on his own blog, Blog Law Online. Robinson shared some of his knowledge about the First Amendment and the role of the media in modern law.

How does the First Amendment apply to private employers, such as professional sports leagues, if at all?

The First Amendment protects free speech and press rights, but only against actions by federal, state and local government officials and agencies. By its own language, the First Amendment only applies to Congress (“Congress shall make no law…”), which also includes all the other branches and agencies of the federal government. The Supreme Court has extended this to state and local governments, so that restrictions on speech by all levels of government must pass muster under the First Amendment. Courts have also extended these requirements to private entities (corporations) that work in concert with or on behalf of the government, such as government contractors.

But otherwise, the First Amendment does not apply to non-governmental entities, including private corporations and organizations. This means that private corporations and organizations generally can — and do — impose restrictions on speech, provided that the restrictions are not (racially) discriminatory, or otherwise illegal.

There is certainly precedent set for punishing what a league defines as hate speech, which the NHL recently considered in the Sean Avery/Wayne Simmonds incident. For instance, the NBA fined Kobe Bryant $100,000 last year for using a homophobic slur. Although socially this seems like the right thing to do, are there concerns that it could lead down a slippery slope? There are already dress codes, so it seems like any activity by players could potentially be regulated.

As a private employer, the NBA is free to impose almost any standards on its employees (the players), as long as these standards are not racially discriminatory. Of course, the players’ association has an important role in determining what standards and penalties for non-compliance that the NBA can impose; these restrictions can be negotiated as part of the NBA’s contract with the players’ association.

If an athlete is using social media for his private uses, can the team still punish him for what is said? Is social media really ever private or is it an extension of your employer at all times? Also, is this different from say a famous athlete who is automatically associated with a team/league versus a factory worker that nobody knows works for GM?

As private entities, the NBA and its teams can punish employees for almost any behavior, either at work or not. This would include their social media activities. From a legal standpoint, there is no difference in this respect between an NBA player and a GM factory worker, unless their contracts place limitations on employer discipline: the relative fame of the former does not make a difference.

Roger Goodell

Roger Goodell is notorious for coming down harder on players who have publicly criticized him. Don’t we have a right to criticize our bosses whether it is in the traditional media or social media? Or do we sign away this right when signing an employment contract? (Granted, it’s never smart to publicly talk about your boss)

As far as the law is concerned, yes, you have a right to criticize your boss. That means that, absent extraordinary circumstances (e.g., threats, harassment, defamation), the government may not restrict or take action against your speech. But Roger Goodell, as a supervisor for a private entity, is not restricted by the First Amendment. The impact that an employment contract has will depend on whether the contract has language addressing this question; if it does, an employee who signs it will be bound by the terms of the contract. (Which is why it’s a good idea to always read a contract before you sign it.)

What rights do college athletes have? They are representatives of their universities, but they are not employees. They are student-athletes? Is it fair to hold them to different standards than any other student?

I wrote about this for the Berkman Center at Harvard. (Click here to read “Intentional Grounding: Can Public Colleges Limit Athletes’ Tweets?”). Because the First Amendment limits government restrictions on speech, but not restrictions imposed by private (non-government) entities, there’s a big difference for athletes and private schools versus public ones. Private schools may impose any restrictions they want on athletes. And while many public schools have also adopted such restrictions, they are of dubious legality, as my article states.

I saw that you have written about the influence of social media on court cases. Do you see this applying across the board to criminal and civil cases? Do you think the highly contentious NFL cases/negotiations this past summer were impacted by bloggers, fans on social media, etc?

Two of the primary concerns about the influence of social media on court cases are that: 1) jurors will obtain, and base their verdicts on, information from outside sources that is not admissible in court, and that 2) jurors will base their verdicts on popular sentiment, rather than solely on the evidence presented in court. With jurors now having smart phones that can easily access the Internet and social media, this is a growing concern and problem.

While most courts now instruct jurors not to access outside information about the cases they are hearing, it is difficult to police, and there are an increasing number of civil and criminal cases in which juror misconduct involving the Internet and social media has become an issue. (For more on this subject, check out Robinson’s article, “Jury Instructions for the Modern Age”). I did not follow the NFL cases and negotiations closely, but since there was no trial, social media could not have had the impact described above. Whether social media added to the pressure for the league and the players’ union to settle their differences is a different matter.

This is not necessarily related directly to sports, but I was wondering if you think the legal profession will see an influx of social media postings used as evidence in the court room in the future? I know some divorce and workers comp lawyers search Facebook for damning photos, but I’m not sure just how common practice it is or if such things are even admissible.

In short, yes. And the courts are now addressing exactly the question you pose: when is such material admissible? is it proper for lawyers to look for it?

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3 Responses to Freedom Of Speech Isn’t Free For Professional Athletes

  1. Benjamin Leonard says:

    It seems you have limited your legal analysis to first amendment issues but other laws restrict what an employer can and can’t do. For example I think that the NFL could be subject to liability for Roger Goodell’s alleged disproportionate punishments directed at players who speak out against him. Under the National Labor Relations Act criticizing ones supervisor is generally protected as a “concerted activity.” Disproportionate penalties directed at an employee for engaging in such conduct is a pretty clear violation of the NLRA in my opinion.

    Also, despite the fact that the NFL is a private actor I think an argument could still be made under the first amendment because the NFL is a government sanctioned monopoly. Certain laws that typically apply only to public actors have been held to apply in the private sector where the government has permitted a monopoly e.g. your local power/water authority. Obviously there are some differences in the necessity of such goods/services but the legal framework to make such an argument has already been accepted by the Supreme Court.

    Thoughts?

  2. Steve says:

    Thanks for the comment Benjamin. I passed them along to Prof. Robinson to see what he has to say

  3. Thanks for the comment. I’m not an expert on labor law, so I’ll concede that Mr. Leonard may be correct in his analysis from that perspective. I note, however, that the law on both his points is far from settled. Certainly, an argument could be made either way. (Which is what lawyers are trained to do.)

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