What Are Roseanne Barr’s Speech Rights?

Roseanne’s controversial tweet (above) offers a lesson in speech rights at work. I’ll spare my own views on her tweet and focus on her rights, and those of her former employer, ABC.

First, people in private workplaces do not have a First Amendment right, though they often think so. The First Amendment states: “Congress shall make no law 

. . .  abridging the freedom of speech, or of the press.” ABC is not the U.S. Congress; nor is it a different government entity (e.g., state), where First Amendment rights apply.

From there, it gets complicated.

Roseanne was filmed in Los Angeles. California has very broad speech rights for private workplaces. California law bans private employers from discriminating against workers due to their political views (called viewpoint discrimination). But the law has exceptions. If a person participates in a political activity that creates a conflict of interest with an employer's business, the employee is not protected. Roseanne’s tweet was political; ABC said it was repugnant; and the law seems to be on the studio’s side.

New York might be the relevant venue. That’s where ABC is headquartered. At first glance, it does not have broader rights for employees than California.
Often, employers designate their headquarter-state as the place to bring a lawsuit.

But there is more. Roseanne had a contract, likely with a morals clause. This is common in many entertainer contracts. Roseanne wants a simple clause, such as this:

“Performer shall not, either while rendering such services to the producer or in his private life, be charged with or convicted of an offense [involving moral turpitude] under federal, state or local laws or ordinances.” 

She broke no law, so if her contract has this language, she likely has a valid contract claim.

But she might have this clause:

“If at any time while Artist is rendering or obligated to render on-camera services for the program hereunder, Artist is involved in any situation or occurrence which subjects Artist to public scandal, disrepute, widespread contempt, public ridicule, [or which is widely deemed by members of the general public, to embarrass, offend, insult or denigrate individuals or groups,] or that will tend to shock, insult or offend the community or public morals or decency or prejudice the Producer in general, then Producer shall have the right, in its sole discretion, to take any action it deems appropriate, including but not limited to terminating the production of the program.” 

ABC would not be in violation of that contract clause.

There is more, including whether she agreed to arbitrate any dispute with her employer (she likely did).

But here’s good legal advice: If you work for a private employer, and you disparage your employer publicly or harm its reputation, you will probably lose a lawsuit to get your job back.