WH Interfered with Jemele Hill’s Right of Free Expression

On Monday, ESPN host Jemele Hill tweeted that “Donald Trump is a white supremacist who has largely surrounded himself w/other white supremacists.”

On Wednesday at a White House press briefing, press secretary Sarah Huckabee Sanders said that Hill’s statements “were outrageous” and constituted a “fireable offense.” Now, Sanders could have simply rejected Hill’s characterization or, in the Trump style, launched a fusillade of insults. But with her “fireable offense” comment, Sanders went further and, in her capacity as a government official, called on ESPN to fire Jemele Hill.

In the end, while ESPN didn’t fire Hill, the sports network criticized her comments as unrepresentative of ESPN’s “positions.” For her part, Hill tweeted that, while her opinion reflected her private beliefs, she regretted them because they cast the network “in an unfair light.”

So, why should we care about the ESPN episode? Agree with her or not, Hill was exercising a right protected by the First Amendment from government interference, namely, free expression.

Let me repeat: the First Amendment prohibits government interference with free expression.

Whether Hill violated a policy of ESPN, a private employer, is a separate matter.

Here, the White House asked a private employer to fire an employee who expressed an opinion it disliked. Think of it as a scary interaction of two powerful, intimidating forces. A private employer, unconstrained by the First Amendment, has enormous power to punish an employee’s exercise of free expression, subject to limited exceptions imposed by the laws of some states. The American Bar Association has observed that, because the First Amendment doesn’t apply in the private workplace, “the threat of speech-related termination creates a powerful economic pressure for self-censorship.”

The other powerful force is the myriad subtle and not-so-subtle ways in which the White House can inflict damage on a company, something that corporate executives in the Trump era are fully attuned to.

After Trump’s failure to unequivocally condemn the Charlottesville neo-Nazis and the KKK, a number of executives resigned from his business councils. But many didn’t because, as reported by Andrew Ross Sorkin in The New York Times, they were “too scared to say anything publicly that could make them or their company a target of Mr. Trump’s wrath.”

This is hardly the first time that the Trump administration has attacked a reporter. But Jemele Hill isn’t a traditional news reporter. She was expressing a personal opinion on Twitter (not from the anchor booth), and as retaliation for her opinion the White House tried to leverage ESPN’s power to fire her.

Perhaps ESPN would have criticized Hill even without Sanders’ “fireable offense” comment. But we can’t rule out that fear of the White House effectively forced ESPN to enter into a private sector-government partnership to discipline an employee for exercising her expressive rights.

Absent disclosure of ESPN’s emails from this week, we will not likely learn whether the “fireable offense” comment caused ESPN to scold Hill and Hill to apologize. And that’s the point. Such a private sector-government partnership is subtle (yet powerful), and therefore not easily challenged in court, but it sends a chilling message to employees.

A few months ago, Trump launched a vicious twitter assault, including sexist insults, on Joe Scarborough and Mika Brzezinski, the hosts of “Morning Joe.” Democrats, as well as Republicans like Paul Ryan and Lindsay Graham, condemned Trump’s tweets because of their coarse and uncivil nature. There has been little criticism of the “fireable offense” comment so far even though the White House’s attempt to intimidate ESPN into firing an employee for expressing her opinion is a lot worse.

A new technique for government intimidation of free expression was tested this week. It’s safe to predict that the Trump administration will use it again.