What Sage Steele’s ESPN Lawsuit Has To Say About Free Speech
4:53 PM EDT on April 29, 2022
On Wednesday, ESPN anchor Sage Steele sued her employer for supposedly retaliating against her in response to comments she made on former NFL quarterback Jay Cutler's podcast last fall. The lawsuit, which is embedded in full below, claims that ESPN suspended her for sharing her opinions, in violation of her constitutional right to free speech. ESPN said in a statement that it never suspended her, and that she remains a valued contributor. The lawsuit was first reported by the Wall Street Journal.
On the podcast, which was published on Sept. 29, Steele called ESPN's vaccine mandate, with which she complied in order to keep her job, "sick" and "scary." She also questioned why Barack Obama identified as black when his black father was "nowhere to be found," and implied that young women are responsible for the "gross comments" they receive.
Shortly after the podcast aired, there was some (extremely predictable) public backlash to Steele's comments. It was also around this time that Steele tested positive for COVID-19 and began quarantining. From the lawsuit:
On the evening of Sunday, October 3, 2021, while she was quarantined, Steele was contacted by Rosetta Ellis, the head of the ESPN talent department, who began the conversation by asking whether Steele was "okay," apparently referring to her mental state. Ellis then asked Steele questions about Steele's comments on the podcast. When Steele asked Ellis if she had listened to the podcast, Ellis admitted she had not. The next day, on October 4, 2021, Steele was informed that she would be "sidelined" or "taking a break" (euphemisms for "suspended") and would be required to issue a public apology for her comments.
The legal merit of Steele's case will likely rest on the definition of suspended. Was she actually targeted for her comments, or did they merely create an unwanted distraction for the network? Or was her "break" just a matter of missing work in accordance with COVID-19 protocols due to her positive test result? The meat of the complaint, filed by entertainment power lawyer Bryan Freedman, who has represented such other prominent recently disgraced media personalities as Megyn Kelly and Chris Cuomo, amounts to yet another argument in favor of a principle of unfettered free speech that doesn't exist at all in practice and never has.
"ESPN and Disney took adverse actions against Steele in the nature of discipline and/or discharge as a result of her exercise of her right to free speech under the [Connecticut] state and federal constitutions," the lawsuit said, reiterating the contested claim that she was suspended and adding that she was "subjected to bullying and harassment by colleagues while ESPN and Disney did nothing to stop it."
The complaint goes on to lay out the ways Steele has been "harassed" by, allegedly, many of her ESPN colleagues, although it only gives two actual examples. It characterizes this as evidence that Steele was punished by her employer for exercising her first amendment rights:
In October 2021, fellow SportsCenter anchor Nicole Briscoe retweeted a post from someone who said she hoped ESPN no longer uses Ms. Steele to cover women's sporting events, with Ms. Briscoe adding, "Amen. (Even if it gets me in trouble.) Amen."
Steele had previously spoken with Norby Williamson about many similar examples of employee retaliation. He told her to inform him when she was attacked by coworkers on social media because he could not keep track of everything on social media, and that if Steele alerted him to the attacks, he would remind anchors who violated ESPN policy not to criticize their fellow employees and to take down the attacking posts.
In keeping with Williamson's instructions, Steele sent a screenshot of Briscoe's tweet to Williamson, who claimed he was "on it." Yet the post remained on her account, publicly accessible for more than three months afterward.
In addition, on November 12, 2021, ESPN NFL analyst Ryan Clark refused to appear on air with Steele because of her comments and asked her boss to replace her with her co-host for the segment. When Clark did not get his way, he did not do the show, and he suffered no penalty from ESPN as a result.
The question of whether this qualifies as harassment aside, is this actually a violation of Steele's right to speech? Or is it merely the consequence of saying dumb and nasty things that offended her colleagues, and her colleagues responding as they saw fit? How you answer will depend to a great degree on whether you see this as Steele is being "attacked" by her colleagues or whether you think those colleagues were just exercising their own right to free speech. (Also where does tattling to Norby Williamson on multiple occasions, in order to get her colleagues punished, fall on the violation-of-free-speech continuum?)
What we have here, then, is a handy illustration of the limits to a certain popular vision of free speech—one that holds it as an absolute individual right that exists separate and apart from everyone and everything else, and which can also be violated by opposing speech. Of course everyone is for free speech when they like the speech in question. The question is, and always has been, about what and where the limits to that speech are, and who gets to decide.
Free speech is a core component of our society's foundation, but it is not the only one. The right to free speech bears upon and interacts with every other right we have; conceiving of it so narrowly—so narrowly as to hold that the zenith of free speech is the right of an individual to say whatever they want without consequence—is, among other things, fundamentally anti-social and ahistorical. There are no easy answers here, but the sooner free speech absolutists grow up about this and admit that their framework for thinking about this fundamental right is completely broken—that it excludes so much vital context and contingency as to exist entirely independent of any lived experience of reality—the more honest our conversations about speech can be.
Steele's lawsuit attempts to establish that ESPN is biased against her for her beliefs, pointing out that former ESPN anchor Jemele Hill was not suspended for tweeting that President Trump was a white supremacist in 2017. But the suit neglects to mention that Hill was suspended for two weeks in 2017 for a tweet about Colin Kaepernick and Dallas Cowboys owner Jerry Jones. The lawsuit also failed to mention Steele's 2018 comments on Hill's suspension, which amounted to saying Hill deserved what she got: "[Jemele] put that onto herself of her own volition." She also said:
“We’re all afraid to comment on things in general these days because you don’t want anyone to take it the wrong way… I just think we’re in very tough times. And I will say this, it’s not a lack of supporting Jemele, it’s simply, I just try to abide by the rules.” She says she now tries to follow Chad the PR professional’s advice to “‘just don’t push send.’ And it has proven to be a pretty wise decision in most cases recently.”
“When you’re a public figure and you choose to make a choice to express yourself, things come with that," Steele said. "People are gonna take what they wanna take from what you say and what you do and at some point, you’ve got to let go of that. Or just don’t talk.”