Speaking your mind, when free speech has consequences

Sep 15, 2017

By Gene Policinski
Inside the First Amendment

Some people like Donald Trump, and say nice things about him.

Some people don't like Donald Trump, and some say things about Donald Trump that are unkind, hurtful and downright insulting. Some people say those things on social media.

And sometimes people who like Donald Trump respond to those comments.

All of that is fine, in free speech terms. And all of that pretty well sums up the tempest in a TV teapot over ESPN host Jemele Hill tweeting a few days ago that the president was a "bigot" and a "white supremacist who has largely surrounded himself with other white supremacists."

In one sense, Hill's tweeted sentiments were hardly unique in the weeks since Trump spawned controversy with remarks after a deadly incident in Charlottesville, Va., involving alt-right and anti-racist protestors. Trump drew widespread criticism at the time for condemning violence "on both sides" and for saying that some "very fine people" marched with the white nationalists in Charlottesville.

But Hill's tweet seemed to cross the boundaries of acceptable speech for some people. At a press conference Wednesday, White House Press Secretary Sarah Huckabee Sanders said that she was not sure if Trump had seen the remarks, "but 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."

For their part, Hill and ESPN took a proper stand during the kerfuffle, asserting the First Amendment right to speak one's mind, with awareness that the amendment is designed to restrain the government, not private companies.

"My comments on Twitter expressed my personal beliefs," Hill said Wednesday night. "My regret is that my comments and the public way I made them painted ESPN in an unfair light. My respect for the company and my colleagues remains unconditional."

ESPN then issued this statement: "Jemele has a right to her personal opinions, but not to publicly share them on a platform that implies that she was in any way speaking on behalf of ESPN. She has acknowledged that her tweets crossed that line and has apologized for doing so. We accept her apology."

Calls from the White House for anyone to be fired for their speech certainly carry more than a little weight. Sander's comments raised the twin specters of government censorship and the kind of language reminiscent of the mass firings of the McCarthy era.

But so far, the specters have remained such. Hill remains employed, ESPN seems to consider the matter closed and Sanders and Trump seem to have moved on to other issues.

But let's parse the issue a bit more, beginning with the question of whether ESPN has been consistent in its reaction to on-air personalities who take a controversial public stance.

Former major league pitcher Curt Schilling was fired in 2016 from ESPN for comments he made on social media that were critical of transgender public bathroom policies. On Thursday Schilling — while calling Hill a racist — said the sports network has a double-standard favoring liberals. Others noted Schilling had been warned at least twice previously about using his ESPN platform to advance his personal views on social issues. Still others said if Hill didn't heed this first warning, the same punishment should apply.

As ugly or argumentative as such discussions may be, they make up the vaunted but messy "marketplace of ideas" — the robust place where ideas, views and philosophies are exchanged, at times with all the emotion that true advocates can bring to such discussion and debate.

On the government's role in the marketplace, the U.S. Supreme Court has set an unwavering standard. In 2011, in a decision upholding the Westboro Baptist Church group's right to protest, Chief Justice John Roberts acknowledged the pain that the group's vile chants might bring to individuals, but wrote, "We cannot react to that pain by punishing the speaker...As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

We have a chance to view, and accept or reject, the personal opinions that Hill and others have on Trump's motivations and racial views. ESPN has a right to say that Hill is speaking for herself, but not for the network, when she airs such views.

The most discordant moment — from the First Amendment point of view — in the whole affair was when Trump's spokesman went beyond mere criticism and suggested that the sports commentator be fired — putting a government chill on Hill's speech, and in no small way the right to free speech all of us have as private citizens.

We all should keep close watch to be sure the "bully" doesn't become the predominant part of the White House's legendary and powerful "bully pulpit."

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. Follow him on Twitter: @genefac.