Free Speech Or Fireable Offense? When Social Media Slays Jobs

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RBR+TVBR INFOCUS


Picture this: Your star morning show host has just made a questionable post on their show’s social media account and there is a firestorm brewing. Some are offended at the remark. There’s trouble brewing.

What do you do that is within the legal boundaries for an appropriate response? For CBS Radio in Las Vegas, there was no reprimand or strong warning handed to Heidi Harris. The 17-year talk show host who helms the 6am-9am slot at the company’s KXNT-AM 820 in the Southern Nevada market was yanked from the station’s lineup.

Did CBS Radio go too far? RBR+TVBR turned to the D.C. legal community for their view on the matter.

The troubles for Harris began during the weekend of Sept. 16-17, a now-deleted Facebook post appeared on the official page for The Heidi Harris Show

The post reads: Has anyone seen this ad for Clark County Family Services? Another not-so-subtle attempt to normalize something that is NOT normal. Even if this is normal for YOU, it’s not the best thing for a family. 

Babies who are eligble for adoption should go to MARRIED people of the opposite sex. This is the IDEAL situation for a baby, and political correctness, changing laws or attitudes cannot alter that REALITY. 

Harris then advised those who disagreed not to post comments about how “some straight people aren’t good parents,” saying, “I’m talking about what’s best for the CHILD, and that’s what the County should be promoting.”

While the post is no longer visible, there is a Sept. 15 post sharing a New York Post article about a wedding called off when the priest refused to marry the couple after the bride-to-be posted her support for same-sex marriage on Facebook.

Harris’ comment: Wow. A man of the cloth who actually stands for something. If you can sit in church and ignore the teaching about same sex marriage you’ll probably ignore the other stuff too. 

THE RIGHT THING, OR RIGHT-WING SILENCE?

For the Washington legal community, there could to be a matter of constitutional free speech at play.

“It is very difficult to stop somebody from speaking, but it does mean they are not protected from the consequences,” notes Peter Tannenwald of Fletcher, Heald & Hildreth.

Another D.C. attorney who requested anonymity echoed Tannenwald’s sentiments. “I doubt you can stop them from doing it in the first place,” the M Street attorney says. “The question is the consequences.”

Kevin Goldberg , attorney that specializes in First Amendment issues at Fletcher, Heald & Hildreth, perhaps says it best when it comes to who has the upper hand when social media posts go awry.

The employer, in most cases, as the right to act in the manner it feels is most appropriate.

“The number one thing that a GM or owner should ask is what the company’s jurisdiction is, generally, over an employee,” Goldberg says from his Rosslyn, Va., office. “The company is not restricted by the First Amendment if they discipline an employee in [the way CBS Radio did].”

But, if it is later discovered or alleged that the employee was one of many who made similar statements on social media and others were not punished in similar fashion, the employee could have a case.

“If she was the only one punished and others did this, she could say she was singled out based on race, gender, etc.,” Goldberg says of Harris. “Then, you have a problem.”

Other than that, there is “pretty strong” legal precedent that the upper hand is the employer’s.

In the case of Harris, CBS Radio’s right to respond is likely accentuated because the social media post many found to be inappropriate was not on a “personal” account — even if not necessarily created by the company’s Las Vegas station group.

“Clearly, the rights or the strengths of an employer in their ability to discipline an air personality increases if the statement is made on an owned account,” Goldberg says. “Company rules may dictate exactly what you can or cannot say, or if you can say anything at all. In some organizations, only certain people can speak or make statements in the station’s name.”

While CBS Radio did not own the Facebook page, it was an official page for The Heidi Harris Show. As this is the name of the morning show on KXNT, and the page was maintained and updated by the show’s host, CBS Radio has a right to step in and do what it needs to do in response.

“If the [social media] is so intertwined with the station, there still could be a right for the station to discipline an employee,” Goldberg notes. “The First Amendment does not protect the employee.”

NO APOLOGIES

Harris’ career as a radio host includes a stint from March 2012 to April 2013 with Salem Media Group in Los Angeles. Before that, she spent five years at Beasley Broadcasting Group Talker KDWN-AM in Las Vegas.

Her most recent stint at KXNT was her second tour of duty at the station: She spent five years as a morning co-host with Alan Stock from 2001-2006 after two years honing her craft in weekends.

Harris’ most recent words came neither on the radio, nor during a TV interview. Rather, they came via a Facebook post to The Heidi Harris Show page, made late Tuesday.

She says: Yes, it’s true, I’m no longer doing a talk show on KXNT. I had a great time there working with great people, but life and God’s plan work in crazy ways. Rest assured I won’t cave on my principles and I have several other projects in the works, so stay tuned…

Meanwhile, CBS Radio/Las Vegas SVP/Market Manager Tony Perlongo would only in a statement to KTNV-13 in Las Vegas that The Heidi Harris Show will no longer air on KXNT.

It’s now up to a crosstown competitor to take roll the dice in Sin City, or steer clear of a host that could stir up controversy in addition to increased ratings and revenue.

Should another media company decide to hire Harris and put her on the air, they’ll simply need to understand that she’s not fully protected by the First Amendment to spout her views — even if not over the airwaves.

“It is a fairly common misconception that the First Amendment grant citizens an unfettered right to voice an opinion,” says Kathleen Kirby, a partner at Wiley Rein LLP. “In fact, the First Amendment prohibits the government from dictating what citizens may say, but it does not prohibit private companies from trying to do so.”

RBR+TVBR