In a sweeping rebuke to allegations by ESPN anchor Sage Steele that the network violated Connecticut law by marginalizing it after it made controversial comments about former President Barack Obama and COVID-19 vaccines, lawyers for the network blasted Steele’s allegations as “unworthy.” They also argued that her call ignores ESPN’s authority in deciding who it will show on air, what content will be broadcast and what it tells the audience about those choices.
ESPN filed a motion to dismiss Steele’s lawsuit filed last Thursday in Connecticut Supreme Court, claiming that Steele — who was praised by the network as an “excellent journalist,” who was not fired, suspended or fined — did not suffer the kind of harm that the law should rectify. Employment attorneys Raymond Bertrand and James De Haan of Paul Hastings LLP wrote a brief for ESPN.
In April, Steele sued ESPN for breach of contract, bad faith, emotional distress and a violation of Connecticut’s unique law that makes it illegal for employers to discipline employees for constitutionally protected speech. The 49-year-old Indiana University graduate insists ESPN hurt her career by asking her to publicly apologize for questioning whether Obama should consider him “black” because his father, Barack Obama Sr., didn’t raise him much and for his mockery of ESPN’s workplace rule Vaccinating employees against COVID-19.
Steele’s provocative comments, which also included a comment linking the harassment of female journalists to what they chose to wear, occurred in September 2021 when she appeared on former NFL and reality TV star Jay Cutler’s podcast “Uncut with Jay Cutler.”
Following Steele’s apology, ESPN released a statement saying that she “embraced[s] Different Viewpoints – Dialogue and debate makes this place great. At the same time, the network warned, “We expect these views will be expressed respectfully, in a manner consistent with our values, and in line with our internal policies.” It added, “We are in direct conversations with SAG and those conversations will remain private.”
In her lawsuit, Steele described feeling ostracized by colleagues who were resentful of her conservative political positions. She was also frustrated by moderators who turned down her high-profile assignments while at ease with hosts who openly mocked former President Donald Trump.
In its brief, ESPN insists that its statement about Steele and related actions qualifies as First Amendment protected speech. The network cites case law to support the view that television programs — and the accompanying commentaries about who and what are on those programs — engage in protected speech. ESPN also emphasizes that Steele is a public figure, noting that in her complaint, Steele describes herself as “one of ESPN’s most popular sports broadcasters.” ESPN maintains that it is entitled to invoke the Connecticut Anti-SLAPP Act, which calls for the dismissal of a lawsuit when the defendant exercises freedom of speech.
ESPN also maintains that it legally participated in the “selection decisions” by assigning Steele assignments and allowing fellow host, Ryan Clark, to decline to appear on air with her. The network maintains that casting decisions are legally categorized as actions that promote protected communications.
“ESPN,” the brief accusations, “has the right to determine who she will appear on the air. It can require her talent to meet certain conditions, such as a public apology before being allowed on the air; especially when their presence otherwise distracts from the subject of the broadcast.” To that end, the network keeps Steele removed from broadcasts, pulling potential assignments and denying her a comeback until she apologizes, all under the umbrella of selection decisions.
Also, ESPN is attempting to expose Steele’s negative portrayal of statements by ESPN Executive Laura Gentile at the ESPNW Summit in October 2021. Gentile has informed the public that Steele will not speak due to her controversial comments – a statement Steele asserts proves “ESPN” was taking disciplinary action against her. But in its brief, ESPN claims that Gentile’s remarks count as a SLAPP communication because, in part, they address hundreds of attendees, including the media, “tens of thousands” of people who were watching online and the broadcast’s subject decisions.
ESPN also maintains Steele’s claim under Connecticut law prohibiting employers from penalizing employees for protected speech, should fail because the law applies only when, as expressly recognized by law, the employee’s speech does not materially or materially interfere with the employee’s good job performance or the working relationship between an employee and an employer.”
Additionally, ESPN maintains that Steele’s comments “disrupted her professional relationships.” The network explains this by claiming that Steele was scheduled to interview Academy Award-winning actress Halle Berry at the 2021 ESPNW Summit, but that “the PR team associated with Berry would not allow her to sit in that interview due to the controversy caused by Steele’s comments.” ESPN also claims that the V Foundation’s fundraiser organizers “asked ESPN to remove Steele from the event because they deemed her comments about the COVID-19 vaccine as “anti-science”, and the foundation’s mission is to raise money for cancer research.”
ESPN also insists Steele was not “disciplined” because that word is understood in law and he did not suffer actionable damage. Steele, ESPN, asserts that she was never denied wages or benefits, and while she “may be unhappy that her co-workers hated what she said,” ESPN cites case law indicating that “personal disputes at work that generate hatred and contempt by co-workers.” work” is not described as “discipline”.
Finally, she accuses ESPN that she could not have violated Steele’s contract because the contract only required ESPN to pay her salary and attendant benefits. ESPN says the nodes lack any language that obliges the network to use its services. Nor does it guarantee their high-ranking or desirable assignments.
Steele’s lawyers will have the opportunity to respond to the ESPN brief and address her arguments.