I worry that the drama at ESPN between Rachel Nichols and Maria Taylor is a harbinger of our dystopian future. A quick summary for anyone who missed the New York Times story from July 4th: Last year, in the NBA bubble, ESPN gave the hosting duties for its pregame show “NBA Countdown” to Maria Taylor, something Nichols complained about in a call with Adam Mendelsohn, an advisor to LeBron James. Nichols suggested that ESPN made the decision because it was “feeling pressure” about diversity in the wake of racial justice protests last summer. That conversation was accidentally recorded onto an ESPN server and then passed around the company, eventually being heard by Taylor. After it was reported by the Times this week, Nichols was removed from coverage of the NBA Finals, and Taylor seems poised to leave ESPN when her contract expires in a few weeks.
The parallels aren't perfect, but this situation seems (factually) like an adult analogue of Mahanoy Area School District v. B.L. decided by the Supreme Court this term. There, a ninth-grade student who didn't make the varsity cheerleading squad was suspended from cheerleading the next year after using sending out a Snapchat saying "fuck school fuck softball fuck cheer fuck everything" that some of her snitchy friends shared with the coach, prompting the suspension. The Supreme Court held the suspension constituted an unlawful speech restriction in violation of the First Amendment.
B.L. admittedly intended to distribute her message more widely than Nichols (to her Snapchat friends), but, like Nichols, she was venting and didn't expect her message would be widely distributed beyond her private circle of Snapchat friends, knowing that the message would self-delete after a short period. Just as Nichols perhaps negligently left the ESPN camera on, B.L. perhaps negligently didn't account for the fact that fellow students would screenshot the snap and share it with others, including the coach. As the Supreme Court put it: "B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless diminish the school’s interest in punishing B. L.’s utterance."
While the ESPN case obviously doesn't implicate the First Amendment (unless you're asking Trump's lawyers), I have a similar impulse with both of these cases, which is that students and employees should have a right to vent and need breathing space to do so in personal settings outside of work/school; while occasionally, the employer/coach/principal will learn of the venting (although they aren't the intended audience) and there might even be some temporary workplace/school disruption, that cannot alone justify discipline.
The parallels aren't perfect, but this situation seems (factually) like an adult analogue of Mahanoy Area School District v. B.L. decided by the Supreme Court this term. There, a ninth-grade student who didn't make the varsity cheerleading squad was suspended from cheerleading the next year after using sending out a Snapchat saying "fuck school fuck softball fuck cheer fuck everything" that some of her snitchy friends shared with the coach, prompting the suspension. The Supreme Court held the suspension constituted an unlawful speech restriction in violation of the First Amendment.
B.L. admittedly intended to distribute her message more widely than Nichols (to her Snapchat friends), but, like Nichols, she was venting and didn't expect her message would be widely distributed beyond her private circle of Snapchat friends, knowing that the message would self-delete after a short period. Just as Nichols perhaps negligently left the ESPN camera on, B.L. perhaps negligently didn't account for the fact that fellow students would screenshot the snap and share it with others, including the coach. As the Supreme Court put it: "B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless diminish the school’s interest in punishing B. L.’s utterance."
While the ESPN case obviously doesn't implicate the First Amendment (unless you're asking Trump's lawyers), I have a similar impulse with both of these cases, which is that students and employees should have a right to vent and need breathing space to do so in personal settings outside of work/school; while occasionally, the employer/coach/principal will learn of the venting (although they aren't the intended audience) and there might even be some temporary workplace/school disruption, that cannot alone justify discipline.