Terrel Owens: Corp Restriction to Free Speech

[McGyver]

I felt this topic worth discussing here as it relates to how corporate and contractual restrictions in "free speech and expression" can impede both an individual, and an organization.

The example I first cite, as it has garnished an extraordinary amount of attention in recent weeks in sports and the media, has been with Philadelphia Eagles' wide receiver Terrel Owens. From the outset, most observers took the position of the team - that Owens' off the field statements could and should be restricted. As I began to follow this story more closely, I began to side with Owens, that he was within his "free speech" rights to openly criticize the team's franchise quarterback, Donovan McNabb, and that in fact McNabb was slacking off. It boils down to an organization and contract issue.

The crux of the issue follows the Eagles' last season Super Bowl loss where after the game Owens publicly criticized McNabb for not toughing it out for 4 full quarters of football in that loss. Terrel does play with a high level of intensity and committment, and he didn't feel McNabb was playing with the same level of intensity - and spoke out. As McNabb had been the organization's franchise player and figure, this apparently wasn't acceptable.

A similar set of circumstances could occur in any organization, and in Owens' case, I believe he simply criticized the wrong individual. The organization chose sides, and then imposed "free speech" restrictions upon Owens. Today, sadly the Eagles announced McNabb will likely have to have season ending sugery:

http://msn.foxsports.com/nfl/story/5086302

In truth, McNabb hasn't been in full health since before Owens was signed two seasons ago. Owens believed he was joining a winning organization, and when it became apparent his quarterback wasn't getting the job done - he spoke up. Perhpas it was his way to motivate McNabb and other players, and deflect criticism away from he and others. But it apparently didn't work, and sentiments set in.

My question is: To what extent should organizations be permitted to restrict the "free speech" of those under its employ?

This Owens case raises some key issues and challenges, and will certainly impact subsequent "free speech" issues and cases sure to arise in the U.S. workplace. I could see some day such a case being taken all the way to the U.S. Supreme Court. Yes, it pits the interests of contract and labor law against one's 1st Amendment right to free speech, and would make for a case of far-reaching significance.

In the Owens incident, the organization's position was that he was interfering with team business, by it occupying so much attention in the media. Yet, I don't believe he violated his moral or good faith covenant provision of his contract, nor did he bring shame upon the organization. I believe the organization created its own shame by not properly attending to, and remedying, the player dispute. The Eagles could have sat both players down, or even traded Owens. Instead, they chose to allow this incident to reach headline news, and sanctioned one individual (Owens). Now they're out their top WO, and quarterback. I believe this incident arose in large part as a result of Eagles' failed management.

If when at all possible, the rights of free speech should be upheld. I hope those involved, and those who follow such stories, understand the implications of their actions, and the options they had at their disposal which they chose not to exercise. I hope professional sports and corporate America can come to understand this key distinction.

Stephen Dolle
Dolle Communications
www.diaceph.com

 

[Pengwuino]

I believe free speech is not to be infringed by the federal government by law. Corporations however, should be able to do whatever they want in terms of free speech, ESPECIALLY in this case. You are paying someone and what they say could be determintal to profits and your organization and you should not be forced to deal with it. In this case, you are payings MILLIONS of dollars for someone in really an industry that relies solely on a sort of "advertisement" basis and the player is a sort of advertisement.

And of course, these are employees... they can quit if they want (im sure contracts have clauses of how to get out of it). You sign a contract with stipulations that you have guaranteed employment for a certain period unless extraordinary circumstances develop. Conversely, the employer agrees to employ you for a certain period unless extraordinary circumstances develop. These circumstances, of course, are outlined in contracts... read what you sign :).

 

[rachmaninoff]

The First Amendment has no meaning here - this is not an act of Congress. Pengwuino's assessment is quite right, I agree with him. (GASP! What have I said? Has heck frozen over tonight? Someone call them up and ask.)

 

[McGyver]

I believe the First Amendment Right is always upheld unless certain provisions "supercede" its enforement, and an its face, Owens has NOT appeared to violate the provisions of his Contract. The Eagles' are not lawfully or contractually permitted defacto to enforce additonal provisions after that Contract was signed. Though this is a private party Agreement, Freedom of Speech and Expression still is a fundamental right. And if organization desires to restrict that - they better have some law or Contract upon which to support their actions.

 

[Pengwuino]

Yah that's one thing we don't know... what does his contract say about this?

But one thing to realize is that no, freedom of speech and expression is not a fundamental right at all, there are no universal laws like that. Legally, the US Constitution only applies to the Federal Government (and state and local governments by precedent). A company has every right to do it because the employee is perfectly capable of just quitting, that's the beauty of it. If you don't like the policies, you are free to leave.

 

[McGyver]

Yah that's one thing we don't know... what does his contract say about this?

But one thing to realize is that no, freedom of speech and expression is not a fundamental right at all, there are no universal laws like that. Legally, the US Constitution only applies to the Federal Government (and state and local governments by precedent). A company has every right to do it because the employee is perfectly capable of just quitting, that's the beauty of it. If you don't like the policies, you are free to leave.

I don't believe Owens, in this case, can QUIT as it would nullify his contract. They could not only forego his salary, but he would also be subject to other damages which a Court might award. As to a company having every right to impose restrictions of ANY kind - those cannot deprive workers of Constitutional Rights merely because they are a private entity. There are "labor laws" that are clear in their intent and define these boundaries. In recent years, private organizations have become more bolden with their practices - a sign of the times and emphasis towards productivity. However, it is actually more often management preotecting their own wares and wills, rather than sound bylaws and rules of the organization.

Private organizations must use great care in drafting their bylaws and provisions so that they do not impede labor laws, nor deprive individuals of fundamental Constitutional Rights. To say that participants in the private sector can merely leave should they face unfounded censorship or discreimination, dares the organization to do as they will without ANY level of accountability.

In Owens case, as is often seen in the private sector, his being relieved from play was as much a failure of management as might be a breach of a specific provision of his contract. I sense there is something larger at issue in this instance, that a sports organization and their lawyers have decided to test an ambiguous player/labor provision - and we will certainly see this play out between the players union, the team, the league, and perhaps even in the civil Courts. I just don't believe his conduct rose to the level of which the team is alleging. They share an equal amount of culpability - and in the end could really loose big.

 

[Pengwuino]

As to a company having every right to impose restrictions of ANY kind - those cannot deprive workers of Constitutional Rights merely because they are a private entity.

I believe this is where we disagree. As far as I know, the US Constitution's "rights" apply only to the federal, local, and state governments. The idea that a private organization... hell, even one such as this forum... can restrict what is talked about within its boundaries shows that there has to be no conflicting interest with the US Constitution. I mean countless numbers of companies restrict certain things at your work-area for example and have for a long time so there is no reason to believe a case exists here for the courts.

Now what they CAN do is make a law specifically intended to protect freedom of speech in the workplace. Labor/workplace protection and things like affirmative action and workplace descrimination protection are not in existence because of the US Constitution, they exist because laws were made.

 

[Astronuc]

From the US Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I believe these restrictions have been extended to governments, State and Local, as well. However, the initial statement only applies to Congress to which Pengwuino alluded.

The first amendment does not apply to Terrell. The corporation is not limited as it is not a government institution, and IIRC football teams are private corporations.

Terrell used bad form - he should have kept his comments within the organization and out of the public domain.

Most companies protect disclosure of company information, so one cannot simply discuss company business outside the company, and if one does, one's employment can usually terminated, or the company can impose some other penalty.

Business is not a democracy as one manager is fond of saying.

 

[BobG]

My question is: To what extent should organizations be permitted to restrict the "free speech" of those under its employ?
This Owens case raises some key issues and challenges, and will certainly impact subsequent "free speech" issues and cases sure to arise in the U.S. workplace. I could see some day such a case being taken all the way to the U.S. Supreme Court. Yes, it pits the interests of contract and labor law against one's 1st Amendment right to free speech, and would make for a case of far-reaching significance.
In the Owens incident, the organization's position was that he was interfering with team business, by it occupying so much attention in the media. Yet, I don't believe he violated his moral or good faith covenant provision of his contract, nor did he bring shame upon the organization. I believe the organization created its own shame by not properly attending to, and remedying, the player dispute. The Eagles could have sat both players down, or even traded Owens. Instead, they chose to allow this incident to reach headline news, and sanctioned one individual (Owens). Now they're out their top WO, and quarterback. I believe this incident arose in large part as a result of Eagles' failed management.
If when at all possible, the rights of free speech should be upheld. I hope those involved, and those who follow such stories, understand the implications of their actions, and the options they had at their disposal which they chose not to exercise. I hope professional sports and corporate America can come to understand this key distinction.
Stephen Dolle
Dolle Communications
www.diaceph.com

Creating a team dividing feud between your star receiver and star quarterback could certainly interfere with the team's effectiveness on the playing field.

Without being a part of the team, it's hard to know exactly what effect Owens's comments have had on the team, but his team mates haven't put up a very vociferous defense of him. I suspect he wasn't suspended just for the comments alone, but instead suspended because the comments are indicative of the overall effect he has had on team chemistry.

In general, employers can legally restrict the free speech of its employers to a limited extent. I imagine a company could prevent an employee from wearing a Coca-cola shirt while working in a Pepsi plant (that example reminds me of when I worked in a potato chip factory - if you ate the company brand, the owner thought you were stealing his potato chips and if you ate a competitor's brand, the owner thought you were disloyal). Likewise, since the President is Commander in Chief of the military, a military person couldn't insult the President on the nightly news while wearing their uniform (they could, however, protest actions of the President off-duty as long as they made no reference to the fact that they were military, provided the protest was legal). A high profile General couldn't get away with protests or publicly insulting the President even while not wearing a uniform since his image would be inexorably linked to the military - any personal opinion he voiced would be viewed by the public as the official military position, plus his vocal opinion would create a mixed message to his troops that would disrupt discipline.

I doubt the case would even be heard by the Supreme Court. Owens would lose even if the case did make it that far.

 

[Art]

From the US Constitution
I believe these restrictions have been extended to governments, State and Local, as well. However, the initial statement only applies to Congress to which Pengwuino alluded.
The first amendment does not apply to Terrell. The corporation is not limited as it is not a government institution, and IIRC football teams are private corporations.
Terrell used bad form - he should have kept his comments within the organization and out of the public domain.
Most companies protect disclosure of company information, so one cannot simply discuss company business outside the company, and if one does, one's employment can usually terminated, or the company can impose some other penalty.
Business is not a democracy as one manager is fond of saying.

As a general rule I agree with your comments above but isn't there an exception; some 'whistle blowing' legislation that allows an employee to speak out without fear of reprisal if their employer acts illegally? Not that I'm suggesting that that's the case in this instance.

 

[russ_watters]

TO signed a contract, McGyver, and he agreed to abide by a certain code of conduct. He broke that agreement. That has nothing to do with freedom of speech.

edit: and even if that hadn't been explicit, as others have indicated, his conduct was most certainly detrimental to the team. As a result, even if there wasn't a code of conduct, they would still be justified in censuring him.

 

[Pengwuino]

As a general rule I agree with your comments above but isn't there an exception; some 'whistle blowing' legislation that allows an employee to speak out without fear of reprisal if their employer acts illegally? Not that I'm suggesting that that's the case in this instance.

I'd also like to know if such legislation has ever existed. I think it may be one of those self-enforcing concepts. If your employee rats you out and you have done something illegal... firing the guy will pretty much be the equivalency of pleading guilty in any DA/jury's eyes so I bet people wouldn't dare do it.

 

[FredGarvin]

This goes well into the issue of corporations holding employees accountable for things they say on private blogs. It is an issue that will have more attention paid to it. I have to agree with everyone in saying that TO does not have first amendment rights. The contract he signed is no different in that means than the contract a soldier signs when he enlists. Soldiers definitely do not have first ammendment rights either.

 

[McGyver]

Now what they CAN do is make a law specifically intended to protect freedom of speech in the workplace. Labor/workplace protection and things like affirmative action and workplace descrimination protection are not in existence because of the US Constitution, they exist because laws were made.

I believe Penguino is incorrect here. Employment and labor laws, as well as many state and federal laws, arise from Constitutional law. One should use caution when trying to interpret law. Though Owens, corporations, and even moderators of this forum, can be subject to restrictions in Free Speech, such restrictions must be stated in advance.

As to Owens, last Friday's hearing focused on the Eagles' coach over-reaction to Owens' conduct, and reports indicate the league feels the Eagles are more culpable. The Ruling is expected out by Tuesday.