Did ESPN Violate Hank Williams' Freedom of Speech?

Did ESPN Violate Hank Williams' Freedom of Speech?

 

On Mondays in the fall, fans across the country get "Ready For Some Football". As of October 6th, no longer will Hank Williams, Jr. be the performer getting football fans hyped up to view  the impending pigskin battle. On Monday, October 3rd, ESPN abruptly cut the iconic country infused tune from the opening of its broadcast after 20 years of using it. Earlier in the day Williams made an analogy involving Nazi Fuhrer Adolf Hitler and President Barack Obama to make a political argument on Fox News Channel. Later, the decision became permanent as both sides allegedly decided to part ways.

Several questions remain in the public. The Grammy winning country singer claimed after reading hundreds of emails he made a decision to separate from ESPN based on the leading sports network violating his freedom of speech. ESPN claims it pulled Williams because he is "closely linked" to the company although he is not an employee. Did ESPN trample on Williams right to free speech? If ESPN did not violtate Williams' freedom of speech does he still have a legal remedy against the world wide leader? The short answers are no and yes.

The First Amendment of the United States Constitution confers the right of freedom of speech to all individuals living in the United states. There are several major limitations to freedom of speech, the applicable limitation here being private action. Only the government is prohibited from restricting speech. Private corporations are free to limit the speech of its employees. "Private" in terms of the Constitution means "not government". It does not mean private in terms of how stock is held.

The legendary justice Oliver Wendell Holmes once opined about private action:

"There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him."

ESPN is a private corporation and clearly stated Hank Williams is not an employee. How does free speech relate to the status of Hank Williams as an independent contractor? The same principles apply here, but instead of rights of the person, economic rights apply. Many companies include clauses in contracts which restrict the other party to the contract from taking action which erode or reflect negatively on its brand. After all, the contract in of itself is designed to make each side money, not lose it. Many endorsement contracts for athletes and performers include such clauses. In no way is the clause absolute, but with every contract one individual signs, he or she suspends certain rights within the scope of that contract.

Hank Williams may not have legal standing on a First Amendment argument, but he may have a pretty strong claim for breach of contract for ESPN yanking his tune on October 3rd. Williams could argue his analogy was too tenuous to fit within the guidelines of a "moral clause" or violating a clause for "actions detrimental" to ESPN's brand. Many of Williams' fans claim the country singer did not directly insult the President, only using Hitler and the Jewish leader Benjamin Netanyahu to point out the extreme difference between the President and House Majority Leader John Boehner. Because the statement and its implications are so subjective muddy, an expensive law suit most certainly would ensue. In all likelihood ESPN and Williams partied ways with some form of a separation agreement. Williams likely agreed not to sue ESPN, and in turn ESPN likely agreed to pay Williams a substantial amount to exit the contract and go somewhere else to hang with his "rowdy friends".

Hank Williams Jr. may not continue with ESPN, but he was most likely handsomely compensated to do so. Williams may have also found some new rowdy friends by making his comments in the current political climate. Whether Williams can depend on those rowdy friends alone to continue his career successfully remains to be seen.

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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  • As you recognize, there is no actual First Amendment issue here, and Williams is free to make a fool of himself on any one of hundreds of cable outlets.

    The only real question is whether the morals clause (which probably includes not doing anything that puts a bad light on the other contracting party) applies, but, as Carlos Estevez proved, those issues can be worked out.

    BTW, how's the buyout of Moo & Oink going? (Reference to reference to you in the S-T regarding representing the prospective purchaser)

  • In reply to jack:

    Jack,

    The moral clause issue is possibly trumped by the new political policy ESPN instituted this summer after Hitler was referenced twice (once by Jemele Hill, who suspended for a week; and Lou Holtz who apologized shortly thereafter but was not suspended). This policy is probably the reason this issue moved to a swift conclusion. ESPN and Disney is good at moving quick to avoid controversy involving its brand.

  • In reply to Exavier Pope:

    Probably so, but we don't know if that "policy" has been incorporated into the particular contract (if your point was whether Disney/ESPN has to pay him off).

  • In reply to jack:

    Jack, Read this articles on ESPN from its independent auditor of sorts:

    http://espn.go.com/blog/poynterreview/post/_/id/139/espns-decision-to-part-with-hank-williams

  • Glad Hank Jr is more articulate when he sings than when he speaks on TV. Still...

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