Musk’s Twitter May Tout Free Speech, but Contracts Still Govern Gaffes
One recurring theme in Elon Musk’s deal to purchase Twitter for $44 billion is his advocacy of free speech.
“Free speech is the bedrock of a functioning democracy,” Musk tweeted on Monday. “And Twitter is the digital town square where matters vital to the future of humanity are debated.”
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Musk’s specific plans to promote free speech are unknown. They might stay that way for a while, too. Musk is not expected to take control of the platform for several months, pending reviews by shareholders and regulators. Yet once he takes over, Musk is expected to direct Twitter away from moderating content in ways that critics insist silence certain viewpoints.
For athletes—particularly those who express controversial positions to large followings—Musk’s Twitter might prove more welcoming. The risk of censure or bans will be diminished. Twitter will likely adhere to the spirit of the First Amendment, which protects the right to voice perspectives that others might regard as divisive or offensive.
But athletes, just like coaches and owners, will remain bound by employment and contractual responsibilities. They’ll still be accountable for expressing opinions that leagues, teams and sponsors view as detrimental to their businesses. The First Amendment ensures the government can’t punish speech, but it doesn’t stop private parties from imposing penalties.
Over the years, athletes, owners and broadcasters have run afoul for tweeted comments that broke no laws yet violated contractual obligations.
In 2010, Australian Olympic gold medalist swimmer Stephanie Rice lost an endorsement deal with Jaguar after she tweeted an anti-gay slur. The following year, Pittsburgh Steelers running back Rashard Mendenhall saw his contract with Hanesbrands end after he offered an unconventional take on the death of Osama Bin Laden. “It’s amazing,” Mendenhall tweeted, “how people can HATE a man they have never even heard speak. We’ve only heard one side…”
Athletes who endorse products or services contractually assent to follow “morals clauses.” Although their wording varies, these clauses ordinarily require athletes to avoid bringing themselves or their companies into public disrepute. Athletes must also refrain from offending the public or the consumers to whom endorsed businesses market. Companies typically enjoy substantial discretion to invoke morals clauses, which allow the brand to terminate or suspend payments. Athletes can challenge contract terminations in court, as Mendenhall did (he and Hanesbrands ultimately settled).
Employment contracts, league constitutions and collectively bargained terms also govern the content of tweets. For instance, in 2013, the NBA fined Dallas Mavericks owner Mark Cuban for a tweet that criticized referees.
Three years later, the Seattle Mariners suspended catcher Steve Clevenger after he tweeted racist remarks.
In 2020, a radio station fired former Sacramento Kings announcer Grant Napear after he tweeted “ALL LIVES MATTER . . . EVERY SINGLE ONE!!” Napear is currently suing the parent company of that station.
Twitter might soon become a more welcoming platform for provocative opinions, but contractual controversies over those opinions will continue.
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