Free Speech, Editorial Freedom, and Job Losses
Recently, the world of sports journalism has had a couple of controversial staffing decisions. The highest profile decision, at least in Canada, was Don Cherry's ouster from Sportsnet after making controversial comments about immigrants.
Slightly lower profile was Barry Petchesky, who was Acting Editor in Chief of Deadspin, until he was dismissed two weeks ago, allegedly, for refusing to "stick to sports".
These have set off firestorms about the state of free speech. To be clear, I have no meaningful information about the terms and conditions of Cherry's or Petchesky's relationships with their respective organizations - were they employees or contractors? Unionized? What did the contracts say?
While it's conceivable that a contract could contain terms to the contrary, this article will assume the general proposition, that a media organization is entitled to control its own content, and will explore the extent to which principles of free speech and editorial freedom should inform that control.
The conclusion, I would suggest, is that the concept of free speech is frequently misunderstood in these discussions: When an organization exerts control over its own content, that is an exercise of free speech, not an infringement of it. However, within certain limits, editorial freedom is important, and organizational attempts to shape its own editorial message will tend to detract from the credibility of the publication.
Don Cherry is a person who needs no introduction. His larger-than-life personality and fashion sense has featured on HNIC's Coaches' Corner since 1982 - and he's no stranger to controversy. He has long promoted the physicality of the game of hockey, and has been regularly criticized for failing to recognize and take seriously the growing evidence of brain injury to hockey players. Just this month, he was heavily criticized on social media for his dismissive attitude dealing with Scott Sabourin's head injury.
He likes to weigh in on controversial subjects, and he doesn't really guard his words. It gets him into trouble from time to time, though it has earned him a lot of fans. This is different, though.
I'm not going to reproduce Cherry's comments. You can find them elsewhere, easily enough. The gist was that not enough people are wearing poppies...and the comments seem to be directed primarily at immigrants, suggesting an ingratitude for the freedoms and prosperity that our veterans died to ensure.
There are two distinct features of his comments that should raise alarm bells: Firstly, the suggestion that he was talking about immigrants specifically is a pretty well-supported proposition, based on the phrase "You people...that come here". Let's face it, "You people" very seldom precedes the innocuous. Unlike folksy dialectic plural pronouns like "y'all" and "you's", "you people" almost always prefaces a criticism, and the "people" are almost always defined by some characteristic other than the subject of the criticism (in this case, being people "who come here").
If Cherry had directed his comments at everyone not wearing the poppy, then he'd still have his spot on Coaches Corner. But singling out immigrants is a problem.
Secondly, he added a first person pronoun into the mix, too, in a way that compounds the difficulty, with phrases like "you love our milk and honey". Wait, whose milk and honey are we talking about? Oh, that's right, ours. It doesn't belong to 'you people'; it belongs to us. Again, I would suggest that the only reasonable interpretation is that the 'you' means immigrants, or perhaps particularly recent immigrants, whereas the 'our' refers to 'Canadian' - for some uncertain definition of what it means to be Canadian, but one that certainly excludes some class of immigrants. And that exclusion is a serious problem.
I'm not going to go into depth on why this kind of language is deeply offensive to immigrants and minorities; there are other commentaries on this which frame the issue better than I could.
But the offence to the rant was so pronounced that the complaints overwhelmed the "technical processing capacities" of the Canadian Broadcast Standards Council.
The next day, Sportsnet apologized, and co-host Ron McLean issued his own apology for "allowing" Cherry's comments. No apology came from Don Cherry, however.
Just Cause: A Speculative Analysis
As a side note, large numbers of expert employment law commentators have offered their opinions about whether or not Don Cherry's conduct amounts to just cause for termination. I think these commentaries - whichever way they lean - are problematic, in large part because the public record simply does not contain the information to come to an informed conclusion.
I don't know for certain that Don Cherry was an employee at all, which has a pronounced impact on the framework. I don't know what his contract said. And, most importantly, I don't know what has happened behind closed doors.
In isolation, would these remarks amount to just cause for an average sportscaster? That's a difficult question, because it's serious misconduct, but just cause is a high standard. But this is not in isolation. Cherry has a long history of controversial comments - a history which Lior Samfiru points out could create an argument that the employer has 'condoned' that kind of speech. On the other hand, any sort of condonation argument could be undermined if the employer took prior disciplinary actions in respect of similar conduct, and we wouldn't know if that had happened. It's also potentially relevant that Hockey Night In Canada changed hands three years ago: Let's suppose, for a moment, that the CBC had condoned this kind of conduct before and never suggested that it approached or crossed any lines (notwithstanding that, following a 2004 remark about how only Europeans and French guys wore visors, CBC put him on a 7 second delay), it remains conceivable that Sportsnet might have clarified the expectations for him and even disciplined him in the three years leading up to this.
Moreover, it's not clear that the termination was just for the comments themselves. It appears from the press releases that there were discussions with Cherry before any decision was made. In light of the apologies from McLean and SN, and the very loud silence from Cherry (and his standing by his remarks post-termination), one might reasonably infer that Cherry was asked/invited/instructed to apologize or retract his comments, and he refused. And that is a seriously different question: If you imagine a scenario where a producer walked into the studio immediately after the broadcast and gave Cherry notice of termination, and contrast it to a scenario where they gave Cherry a meaningful opportunity to 'make things right' and he refused to do so, those are dramatically different just cause analyses. (His own comments after the fact, that he "could have stayed" if he came back "as a tamed person" lend credence to this inference: SN was willing to let him stay...but only on conditions that he wasn't prepared to meet.)
Earlier this year, Deadspin was purchased by a private equity company, and new management issued an edict that the publication was to 'stick to sports'.
The staff resisted this edict. Petchesky argues that sports overlaps important social issues, like drug use among players, political positions and protests on the field, etc.
Two weeks ago, Petchesky posted that he was fired. Unlike the Cherry case, most of the literature on this one is from the dismissed individual himself - and from the torrent of resignations that followed.
I don't typically follow Deadspin, and I have a hard time finding reliable information about the specifics of the coverage to which the new management objected. Petchesky's argument that meaningful sports coverage often includes things that are peripheral to sports...is compelling...but it's not immediately clear to me how many of his examples would have fallen outside the "stick to sports" mandate.
So I can't necessarily assume that the lines are quite as clear as Petchesky draws them. But there's a certain resonance of 'stick to sports' with the 'shut up and play' response to the NFL player protests. (It always struck me as intellectually dishonest to argue that political statements don't belong on the field...so let's all make sure to stand up for the flag and sing the anthem.) And so when new management comes in, and issues a new corporate direction to existing staff that they should 'stick to sports', it raises a certain inference as to what that means - a sanitization of sports coverage to avoid controversial positions.
(To be clear, I'm not suggesting any particular motivation for such sanitization, if that's what's going on at all. It could be because they believe that there is a better audience for 'pure' sports content. It could be that they want to stifle discussion of political issues that could be damaging to their own other interests. Maybe it's just that they don't want to step on the toes of other publications under management's umbrella.)
When we discuss freedom of speech, what we're talking about, precisely, is a freedom from government interference. Subject to some very limited exceptions, the government can't force me to take down this blog, can't compel me to post any particular content on this blog, and can't punish me for posting or not posting some given content.
However, this 'freedom' against government interference does not confer any positive rights enforceable against other private parties. My freedom of speech does not guarantee me a platform or an audience. It does not obligate anyone - government or otherwise - to take steps to facilitate my speech. And it does not protect me from lawful interference in speech by other private parties. If Blogger decided to impose content requirements, there wouldn't necessarily be much I could do about that. I'd have to comply or risk deplatforming.
That is not an infringement of freedom of speech. I remain free to find another platform, start my own platform, or write my blog on placards and carry it around in public places. Google (which operates Blogger) doesn't owe me a platform, and can take it away for almost whatever reason it wants, no matter how capricious or unreasonable. (Again, there are very narrow exceptions to this proposition.)
Moreover, when a platform or publication decides what content it wants or doesn't want to publish, that platform or publication is actually exercising its freedom of speech. Just like the government can't force me to publish their content, it also can't force Blogger to publish my content. That's freedom of expression in action.
The same phenomenon exists, on a lower level, for guest bloggers. From time to time, on blogs I have maintained in the past, I have had others reach out to me interested in publishing a guest blog. I have said 'yes' on occasion, when I felt that the content made a positive contribution for the purposes of my blog. I have said 'no' on other occasions. (And there can be a lot of spam by bots trying to get you to share their 'content', which I ignore.) That is my prerogative, and my discretion. I don't need to justify my decisions; I don't need to develop a set of principled rules or policies.
That is freedom: The freedom to publish somebody else's content...or not. Just like Blogger is free to publish my content, or not.
And just like Sportsnet and Deadspin are entitled to publish the content of Don Cherry and Barry Petchesky (respectively), or not.
So supporting 'freedom of speech' means supporting SN's and Deadspin's rights to control their own content.
But there's another more complicated issue here, at least in the Deadspin context.
In journalistic contexts, there is supposed to be a division between the ownership of the publication and the editorial content of the publication: The Editor-in-Chief is supposed to be the final authority on what content is published. Many major newspapers have editorial boards for this purpose.
This isn't a constitutional principle, or a legal principle, but simply an industrial norm. And like most industrial norms, it looks pretty flimsy if organizations ever decide to ignore it.
It's not really a concept that applies to individual commentators, like Don Cherry. Even to people to whom it does apply, there are definitely limits - which have not historically been well-tested, but there are other principles of journalistic integrity that co-exist with editorial independence.
This is a conflict between journalistic and capitalist principles - both of which serve critical functions in a free and democratic society. Where journalistic principles press toward accurate and credible reporting of matters of public interest, capitalist principles suggest that media organizations should focus singly on profitability - without regard for public interest, accuracy, or credibility.
A journalist wants to report on what people need to know. A business wants to tell people what they want to hear. In an industry that has exceedingly struggled to pay its bills in the age of the internet, the 'profit motive' is one that often has to win. (This is somewhat separate from the problem of corporate owners using the political power of the press to advance their non-journalistic interests.)
Whenever a media conglomerate dictates the editorial content of a news organization, it detracts from the credibility of that organization. Whether it's peddling a salacious and unverified scandal, or using the publication as a soapbox for management's political views, it takes away from the value of the press to the fabric of our democracy.
There is little question that Deadspin's ownership has the legal right, and even a constitutional right, to control its own content. But when changes in corporate ownership result in material changes to the editorial mandate of a publication, that should, at minimum, raise some flags for us as to why.
Slightly lower profile was Barry Petchesky, who was Acting Editor in Chief of Deadspin, until he was dismissed two weeks ago, allegedly, for refusing to "stick to sports".
These have set off firestorms about the state of free speech. To be clear, I have no meaningful information about the terms and conditions of Cherry's or Petchesky's relationships with their respective organizations - were they employees or contractors? Unionized? What did the contracts say?
While it's conceivable that a contract could contain terms to the contrary, this article will assume the general proposition, that a media organization is entitled to control its own content, and will explore the extent to which principles of free speech and editorial freedom should inform that control.
The conclusion, I would suggest, is that the concept of free speech is frequently misunderstood in these discussions: When an organization exerts control over its own content, that is an exercise of free speech, not an infringement of it. However, within certain limits, editorial freedom is important, and organizational attempts to shape its own editorial message will tend to detract from the credibility of the publication.
Don Cherry and "You People"
Don Cherry is a person who needs no introduction. His larger-than-life personality and fashion sense has featured on HNIC's Coaches' Corner since 1982 - and he's no stranger to controversy. He has long promoted the physicality of the game of hockey, and has been regularly criticized for failing to recognize and take seriously the growing evidence of brain injury to hockey players. Just this month, he was heavily criticized on social media for his dismissive attitude dealing with Scott Sabourin's head injury.
He likes to weigh in on controversial subjects, and he doesn't really guard his words. It gets him into trouble from time to time, though it has earned him a lot of fans. This is different, though.
I'm not going to reproduce Cherry's comments. You can find them elsewhere, easily enough. The gist was that not enough people are wearing poppies...and the comments seem to be directed primarily at immigrants, suggesting an ingratitude for the freedoms and prosperity that our veterans died to ensure.
There are two distinct features of his comments that should raise alarm bells: Firstly, the suggestion that he was talking about immigrants specifically is a pretty well-supported proposition, based on the phrase "You people...that come here". Let's face it, "You people" very seldom precedes the innocuous. Unlike folksy dialectic plural pronouns like "y'all" and "you's", "you people" almost always prefaces a criticism, and the "people" are almost always defined by some characteristic other than the subject of the criticism (in this case, being people "who come here").
If Cherry had directed his comments at everyone not wearing the poppy, then he'd still have his spot on Coaches Corner. But singling out immigrants is a problem.
Secondly, he added a first person pronoun into the mix, too, in a way that compounds the difficulty, with phrases like "you love our milk and honey". Wait, whose milk and honey are we talking about? Oh, that's right, ours. It doesn't belong to 'you people'; it belongs to us. Again, I would suggest that the only reasonable interpretation is that the 'you' means immigrants, or perhaps particularly recent immigrants, whereas the 'our' refers to 'Canadian' - for some uncertain definition of what it means to be Canadian, but one that certainly excludes some class of immigrants. And that exclusion is a serious problem.
I'm not going to go into depth on why this kind of language is deeply offensive to immigrants and minorities; there are other commentaries on this which frame the issue better than I could.
But the offence to the rant was so pronounced that the complaints overwhelmed the "technical processing capacities" of the Canadian Broadcast Standards Council.
The next day, Sportsnet apologized, and co-host Ron McLean issued his own apology for "allowing" Cherry's comments. No apology came from Don Cherry, however.
Just Cause: A Speculative Analysis
As a side note, large numbers of expert employment law commentators have offered their opinions about whether or not Don Cherry's conduct amounts to just cause for termination. I think these commentaries - whichever way they lean - are problematic, in large part because the public record simply does not contain the information to come to an informed conclusion.
I don't know for certain that Don Cherry was an employee at all, which has a pronounced impact on the framework. I don't know what his contract said. And, most importantly, I don't know what has happened behind closed doors.
In isolation, would these remarks amount to just cause for an average sportscaster? That's a difficult question, because it's serious misconduct, but just cause is a high standard. But this is not in isolation. Cherry has a long history of controversial comments - a history which Lior Samfiru points out could create an argument that the employer has 'condoned' that kind of speech. On the other hand, any sort of condonation argument could be undermined if the employer took prior disciplinary actions in respect of similar conduct, and we wouldn't know if that had happened. It's also potentially relevant that Hockey Night In Canada changed hands three years ago: Let's suppose, for a moment, that the CBC had condoned this kind of conduct before and never suggested that it approached or crossed any lines (notwithstanding that, following a 2004 remark about how only Europeans and French guys wore visors, CBC put him on a 7 second delay), it remains conceivable that Sportsnet might have clarified the expectations for him and even disciplined him in the three years leading up to this.
Moreover, it's not clear that the termination was just for the comments themselves. It appears from the press releases that there were discussions with Cherry before any decision was made. In light of the apologies from McLean and SN, and the very loud silence from Cherry (and his standing by his remarks post-termination), one might reasonably infer that Cherry was asked/invited/instructed to apologize or retract his comments, and he refused. And that is a seriously different question: If you imagine a scenario where a producer walked into the studio immediately after the broadcast and gave Cherry notice of termination, and contrast it to a scenario where they gave Cherry a meaningful opportunity to 'make things right' and he refused to do so, those are dramatically different just cause analyses. (His own comments after the fact, that he "could have stayed" if he came back "as a tamed person" lend credence to this inference: SN was willing to let him stay...but only on conditions that he wasn't prepared to meet.)
Barry Petchesky and "Stick to Sports"
Earlier this year, Deadspin was purchased by a private equity company, and new management issued an edict that the publication was to 'stick to sports'.
The staff resisted this edict. Petchesky argues that sports overlaps important social issues, like drug use among players, political positions and protests on the field, etc.
Two weeks ago, Petchesky posted that he was fired. Unlike the Cherry case, most of the literature on this one is from the dismissed individual himself - and from the torrent of resignations that followed.
I don't typically follow Deadspin, and I have a hard time finding reliable information about the specifics of the coverage to which the new management objected. Petchesky's argument that meaningful sports coverage often includes things that are peripheral to sports...is compelling...but it's not immediately clear to me how many of his examples would have fallen outside the "stick to sports" mandate.
So I can't necessarily assume that the lines are quite as clear as Petchesky draws them. But there's a certain resonance of 'stick to sports' with the 'shut up and play' response to the NFL player protests. (It always struck me as intellectually dishonest to argue that political statements don't belong on the field...so let's all make sure to stand up for the flag and sing the anthem.) And so when new management comes in, and issues a new corporate direction to existing staff that they should 'stick to sports', it raises a certain inference as to what that means - a sanitization of sports coverage to avoid controversial positions.
(To be clear, I'm not suggesting any particular motivation for such sanitization, if that's what's going on at all. It could be because they believe that there is a better audience for 'pure' sports content. It could be that they want to stifle discussion of political issues that could be damaging to their own other interests. Maybe it's just that they don't want to step on the toes of other publications under management's umbrella.)
Freedom of Speech and the Private Market
When we discuss freedom of speech, what we're talking about, precisely, is a freedom from government interference. Subject to some very limited exceptions, the government can't force me to take down this blog, can't compel me to post any particular content on this blog, and can't punish me for posting or not posting some given content.
However, this 'freedom' against government interference does not confer any positive rights enforceable against other private parties. My freedom of speech does not guarantee me a platform or an audience. It does not obligate anyone - government or otherwise - to take steps to facilitate my speech. And it does not protect me from lawful interference in speech by other private parties. If Blogger decided to impose content requirements, there wouldn't necessarily be much I could do about that. I'd have to comply or risk deplatforming.
That is not an infringement of freedom of speech. I remain free to find another platform, start my own platform, or write my blog on placards and carry it around in public places. Google (which operates Blogger) doesn't owe me a platform, and can take it away for almost whatever reason it wants, no matter how capricious or unreasonable. (Again, there are very narrow exceptions to this proposition.)
Moreover, when a platform or publication decides what content it wants or doesn't want to publish, that platform or publication is actually exercising its freedom of speech. Just like the government can't force me to publish their content, it also can't force Blogger to publish my content. That's freedom of expression in action.
The same phenomenon exists, on a lower level, for guest bloggers. From time to time, on blogs I have maintained in the past, I have had others reach out to me interested in publishing a guest blog. I have said 'yes' on occasion, when I felt that the content made a positive contribution for the purposes of my blog. I have said 'no' on other occasions. (And there can be a lot of spam by bots trying to get you to share their 'content', which I ignore.) That is my prerogative, and my discretion. I don't need to justify my decisions; I don't need to develop a set of principled rules or policies.
That is freedom: The freedom to publish somebody else's content...or not. Just like Blogger is free to publish my content, or not.
And just like Sportsnet and Deadspin are entitled to publish the content of Don Cherry and Barry Petchesky (respectively), or not.
So supporting 'freedom of speech' means supporting SN's and Deadspin's rights to control their own content.
But there's another more complicated issue here, at least in the Deadspin context.
Editorial Independence
In journalistic contexts, there is supposed to be a division between the ownership of the publication and the editorial content of the publication: The Editor-in-Chief is supposed to be the final authority on what content is published. Many major newspapers have editorial boards for this purpose.
This isn't a constitutional principle, or a legal principle, but simply an industrial norm. And like most industrial norms, it looks pretty flimsy if organizations ever decide to ignore it.
It's not really a concept that applies to individual commentators, like Don Cherry. Even to people to whom it does apply, there are definitely limits - which have not historically been well-tested, but there are other principles of journalistic integrity that co-exist with editorial independence.
This is a conflict between journalistic and capitalist principles - both of which serve critical functions in a free and democratic society. Where journalistic principles press toward accurate and credible reporting of matters of public interest, capitalist principles suggest that media organizations should focus singly on profitability - without regard for public interest, accuracy, or credibility.
A journalist wants to report on what people need to know. A business wants to tell people what they want to hear. In an industry that has exceedingly struggled to pay its bills in the age of the internet, the 'profit motive' is one that often has to win. (This is somewhat separate from the problem of corporate owners using the political power of the press to advance their non-journalistic interests.)
Whenever a media conglomerate dictates the editorial content of a news organization, it detracts from the credibility of that organization. Whether it's peddling a salacious and unverified scandal, or using the publication as a soapbox for management's political views, it takes away from the value of the press to the fabric of our democracy.
There is little question that Deadspin's ownership has the legal right, and even a constitutional right, to control its own content. But when changes in corporate ownership result in material changes to the editorial mandate of a publication, that should, at minimum, raise some flags for us as to why.
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