Bill Simmons, ESPN analyst and sports pundit, has been suspended for three weeks for comments he recently made about NFL commissioner Roger Goodell's part in the Ray Rice video scandal. Addressing the issue of whether Goodell had seen the full video prior to the second penalty he levied against Rice during a broadcast of Simmons' podcast "The B.S. Report" he said about Goodell: "I'm just saying it. He is lying. I think that dude is lying..." He then practically dared ESPN to suspend him, and they did. ESPN also released a statement which included the lines "Every employee must be accountable to ESPN and those engaged in our editorial operations must also operate within ESPN's journalistic standards." In addition to his suspension Simmons has also been suspended from using Twitter.
The Simmons suspension has remained office water cooler fodder all week, but one question that keeps coming up is surround the issue of Simmons' First Amendment rights. Doesn't he have the right to say what he wants?
The simple answer is no – not if he wants to keep his job. Like it or not, there is no constitutional right to freedom of speech in a private workplace. The First Amendment only applies when government entities are involved, so ESPN is within its rights to suspend Simmons. If his employment contract includes references to his Twitter account and their ability to suspend it, they are within their rights there as well. This is an employment contract issue, not a First Amendment one.
That said, employers do have to be careful when it comes to social media. ESPN has a notoriously restrictive social media policy with a strict employee policy handbook, "Editorial Guidelines for Standards and Practices, and Commentary and Media Criticism Guidelines" (See frontrrow.espn.go.com/wp-content/uploads/2011/08/social-networking-v@-2011.pdf).
ESPN takes the position that it can control much, if not all, of what employees tweet. While its policy is likely legal, social media policies must not be overly restrictive. The National Labor Relations Board protects private employees and their rights to join together to improve their working conditions. The NLRB has commented on some companies' social media policies and found that they are unlawful because they restrict an employee's right to criticize his employer. Section 7 of the National Labor Relations Act prohibits such restriction, stating that employees can "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (29 USC Sec 157). The NLRB has interpreted this broadly and said that if a social media policy "would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves" it violates Section 7. While the Simmons situation may not fall under this umbrella, employers must be aware that their social media policies cannot prohibit actions that Section 7 protects.
The bottom line, as Simmons recently learned, is that you are indeed free to say what you want on the job but you are also free to suffer the consequences, which can be a warning, outright suspension or termination, depending on whether a case can be made that you damaged your company's reputation.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
