Free association, a process originally developed by Sigmund Freud's mentor Josef Breuer, is a technique where patients convey whatever comes into their minds without censoring. Sound familiar modern world? You bet. On Twitter people say all kinds of witty, informational, and outlandish things, mostly without reprisal.
The equation changes when your name is Rashard Mendenhall, the fleet of foot running back of the Pittsburgh Steelers. Mendenhall is one of the many athletes whose free association has landed the proverbial foot in mouth. With such widespread use of the site, can and should professional sports teams ban the use of Twitter and other social media by its players?
Mendenhall created quite the stir with comments made on his Twitter page Monday after news of Osama bin Laden's death broke.
"What kind of person celebrates death?....It's amazing how people can HATE a man they have never even heard speak. We've only heard one side..." ~ Rashard Mendenhall
I was not aware someone could stick their entire body in their mouth, leaving only their lips.
Mendenhall regurgitated himself under the scrutiny of the public, his team, and probably his mama with an apology:
"I apologize for the timing as such a sensitive matter, but it was not meant to do harm. I apologize to anyone I unintentionally harmed with anything that I said, or any hurtful interpretation that was made and put in my name."
The Pittsburgh Steelers did indeed distance themselves from Mendenhall. However, could they prevent him from tweeting entirely? The issue is as dicey as the onions in a White Castle burger. The issues involve squarely involve the First Amendment and the intersection of employment law.
The First Amendment protects freedom of speech with some very important exceptions, one of which includes speech made by an at will employee. Because professional athlete employment is governed by collective bargaining agreement and accompanying individual player contract, the terms of the agreement regulate speech.
Employers generally can govern what employees say in the workplace, which makes it easier for leagues and individual teams to have a "Twitter Policy".
The NFL bars use of social media beginning 90 minutes before a game until following the conclusion of media interviews after a game. The NBA bans uses of social media from 45 minutes before game time until after players have finished their responsibilities after games. Neither league restricts Twitter use by players and coaches at other times. Why? Teams cannot, unless players and coaches agree to resrict their own speech.
There is a caveat. Leagues have personal conduct policies that allow teams to fine and suspend players for conduct off the field. However, there is very little speech a personal conduct policy could possibly cover, unless it was one of the general areas of unprotectable speech, such as inciting violence, yelling fire in a crowded theatre ("imminent lawlessness"), or obscenity (i.e. sexual harassment).
So although leagues cannot entirely limit what players can say off the field, such comments still may hurt the pocket book. Loss of endorsements and future opportunities are sure to be backlash for players making off color statements.
Word to the wise athletes from my dearly departed foster mom: "Watch your mouth".
Exavier B. Pope, Esq. is an entertainment and sports attorney and legal blogger for Chicago Now. All opinions expressed are those solely of Mr. Pope.
(c) 2011, Exavier Pope
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