Thursday, October 24, 2019

Rob Drake's Twitter War, Umpires and Social Media

With MLB umpire Rob Drake under fire for a since-deleted political tweet referencing an AR-15 firearm and "cival war," we analyzed the freedom of speech concept, umpires in public and online, and disciplinary appropriateness for what happens when an umpire goes beyond the pale of protected speech in a public forum hosted on a private platform, as social media on the internet is.

Disclaimer: Close Call Sports has had a longstanding policy of no politics on the website. This story is so significant that it all but requires an article, but we will attempt to do so while not delving into the political discussion other than to report the facts of what occurred.

The Story: According to ESPN, Drake on Tuesday tweeted "I will be buying an AR-15 tomorrow, because if you impeach MY PRESIDENT this way, YOU WILL HAVE ANOTHER CIVAL WAR!!! #MAGA2020." The tweet, published to Drake's @thedrake30 Twitter account, was subsequently deleted and the account deactivated, but the damage was done as the tweet's content was spread throughout the news world, resulting in a pending MLB investigation.

Freedom of Speech: As an American citizen, Drake—just like anyone else—is entitled to the protections of the USA's first amendment regarding freedom of expression, but what exactly is free speech?

Free Speech is a right with certain allowances & limitations.
The First Amendment to the United States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

What That Means: In short, the US government cannot arrest a person for exercising his or her first amendment an extent. For example, speech is limited if it presents a "clear and present danger" (e.g., a terroristic threat) and it is also limited on private property. If Twitter, for instance, wanted to remove Drake's tweet (as opposed to Drake deleting it himself), it would have the legal right to do so, as Twitter is a private platform (thus, it would be a legal form of censorship, but not a violation of the US constitution regarding free speech).
Free speech can get somewhat complicated.

Freedom of Speech Doesn't Apply to Private Entities
: The accompanying image of a sign outside Gelson's Market asserts the private property owner (the supermarket)'s right to censor speech while acknowledging the public/government (local police)'s default declination to take action against it.

Although a person's speech is protected by constitutional law, a non-public company can set its own rules (as long as they aren't discriminatory pursuant to federal, state, or local law) while the speech may be "unauthorized activity" from Gelson's Market's point of view, it is not the same from the police's perspective (trespassing is another matter entirely).

Court of Public Opinion: The mythical court of public opinion cares not one whit about rules, laws, nor facts—i.e., the electronic strike zone issue. Keep this in mind, because I will refer back to this "court" throughout the article's latter half.

Drake walks away from Justin Turner in SD.
For example, the court of public opinion might ask if Drake's prior body of work was in any way influenced by the perceived ideas exposed through the content of his tweet, for instance, did he call a pitch one way or another because of X or Y, related to his twitter presence and unrelated to his professional umpiring training.

Sidebar: In the Angel Hernandez lawsuit, MLB referenced its federal anti-trust exemption, which goes back nearly 100 years, and which technically could mean that MLB is bound by some degree of public oversight and/or responsibility. For instance, the Mitchell Report for MLB Commissioner Bud Selig in 2007 was conducted by the US Congress and Maine Senator George J. Mitchell, a public body and a publicly elected official.

What does this say about non-USA players?
Although an employee is protected from retaliation (e.g., adverse treatment, demotion/firing, etc.) by an employer for political speech/beliefs in certain jurisdictions, such as California (A's, Angels, Dodgers, Giants, Padres) or the federal protection from discrimination based on political affiliation—Drake's tweet goes beyond any potentially protected political speech by referencing (1) an AR-15 firearm [which on its own may be protected by the second amendment, if not for...], and (2) civil ("cival") war [...invoking war].

Gun & War: Those two parts of the tweet, in concert, are what have Drake in hot water. We researched the issue, and Drake's longstanding Twitter account has featured political content for a considerable length of time—most nearly all of which were his right to express. But what set this tweet apart were his invocation of a direct action relative to a firearm ("I will be buying an AR-15 tomorrow") and an allusion to its use ("YOU WILL HAVE ANOTHER CIVAL [sic] WAR").

Mentioning a gun & war sealed the deal.
If he doesn't put those two elements in his tweet, there isn't much actionable content for anyone to react to (other than, again, his politics, which, agree or disagree, we are not discussing, and which is anyone's right to have). The question is whether a reasonable person might construe such a sentence as violent or invocative of violence.

Referring back to the limits of free speech relative to the potentially criminal threat issue, these limits can also vary by jurisdiction/state, and in some places, rather depends on how a reasonable person interprets the speech regardless of whether the person who said the speech intended it to be threatening or not.

Which means that Drake's tweet about guns and war may or may not be a threat—again, largely in reference to the court of public opinion. The question of whether "threat" is appropriate here depends not on Drake, but on the person interpreting his statement.

Considering that the answer is largely politically-inclined (for instance, a court-of-opinion jury of 12 reasonable people might split on the issue—quite dramatically too, as in a "how could you POSSIBLY think it was a threat?" versus "how could you POSSIBLY think it was NOT a threat?" debate), we will leave that question open-ended...and ultimately, I don't personally believe we're looking at a crime per se...unless one were to consider it a social media/public opinion crime, in which case we're back to the political divide that CCS isn't touching.

Umpires at ALL Levels are Public: My educated guess is that someone in the media had been following Drake's twitter account (and perhaps those of other MLB umpires) for months. Journalism what it is, I would think Drake's political tweets were known, but again, as long as they were only about politics, they were rather benign—not once did Drake appear to comment on MLB game events, and, after all, even Joe West made a political statement in an interview, but it was woven into a story, and, again, rather benign.

How'd they get in? Drake's account was public.
As soon as Drake—operating with a fully public Twitter account—tweeted something beyond the pale of simple politics, it was go time.

Bias: What really hurts Drake comes down to the same thing that doomed Toby Basner in 2016 (when a family member's Facebook post applauded Basner's May 21, 2016 ejection of Blue Jays player Josh Donaldson) and netted Joe West a three-game suspension in 2017 (when he described Adrian Beltre as baseball's biggest complainer): an appearance of lack of impartiality as an umpire.

Cuzzi kept it light in August by demurring.
Impartiality is Officiating's Lifeblood: Again, we're not talking politics, so I'll just leave it as society's expectation that an umpire must be impartial in all aspects of life in order to be impartial on the field, and an indication to the contrary thus calls into question, in the court of public opinion, the umpire's neutrality on the field...Drake's tweet hit on hot-button issues in the popular culture as well as sports officiating specifically.

To repeat: yes, any official is absolutely entitled to political opinions by nature of being a citizen and a human being...but the court of public opinion judges officials far more harshly than others due to an expectation of neutrality.

I refer to August 2019, when Phil Cuzzi had a terrific response when he was asked in Chicago which MLB player talks the most trash to umpires—he laughed, patted a reporter on the shoulder, and walked away without answering the question...because he knew that saying any name in public would instantly lead to a news story that he lacked impartiality and was biased against a certain player, or certain team, such that any future close call against that team or in favor of a divisional foe (or game opponent) would be called into question even more so than they would be otherwise.
Related PostPlaying in Public - Cuzzi Keeps Cool (8/12/19).

It's the same reason Joe West is suing Paul Lo Duca over Lo Duca's public claim that West purportedly accepted a bribe in exchange for favorable calls: one of an umpire's most valuable attributes is the perception of impartiality or fairness, and this reputation for ethics is fairly vital to a successful officiating career.
Related PostJoe West Sues Paul LoDuca Over Bribery Claim (10/22/19).

We are very comfortable with this fact check.
And that's what hurts Drake so much here from an officiating standpoint—politics aside, the fact that Drake has such a strong opinion may call into question, in the court of public opinion, his ability to be a neutral arbiter.

From a humanistic standpoint, tweeting about gun violence in a cavalier manner is harmful in today's environment. In 2015, the Houston Rockets fired social media manager Chad Shanks for tweeting an emoji of a gun on the brand's account. In 2018, Disney removed James Gunn from directing Guardians of the Galaxy after a series of offensive tweets. In June, Compass Elementary School placed principal Dr. Chad Searcey on administrative leave—he later entered into a separation agreement with the school—after he tweeted photographs of guns in opposition to a gun control conversation.

Social media hate & harm leads to job loss.
It's not just guns. The Des Moines Register fired reporter Aaron Calvin over past racially-charged tweets, and the Fort Worth Independent School District fired teacher Georgia Clark for her tweets referencing "illegal students."

The Point? Silence Cannot Be Misquoted: When it comes to an official's online presence—from MLB crew chiefs to Little League umpires, NFL referees to Pop Warner officials—less is often more. It's absolutely fine to share innocuous well wishes and positive messages—as we've seen with tributes to the late Eric Cooper and various charitable endeavors with UmpsCare and beyond—but it's wholly another matter to enter into the fray of controversial hot-button issues of the day.

Case Study, NHL: The National Hockey League made headlines when it suspended referee Tim Peel in 2015 for meeting with hockey reporter Greg Wyshynski in a bar, and taking a picture with him. As Wyshynski wrote, "Peel's a good guy who genuinely wanted for me to learn about where he's coming from and vice versa; and in turn, to enlighten the critics of NHL referees about why they do what they do."

This photo landed Peel in hot water.
As Wyshynski phrased it, "it references the myopic micro-managing of officials that leaves so many fans and media frustrated." Yet...Wyshynski and other reporters help contribute to the problem by criticizing officials for the most minor of actions, which perpetuates the suffocating cycle in the first place.

For instance, Peel joined Twitter on July 21, 2014 and tweeted out a welcome message at 1:55pm. By 7:45am on July 22, he tweeted, "Sorry hockey fans..gotta shut it down#Passionate hockey fans!" 16 hours and that was that.

Is it fair? Probably not, but that's the scrutiny officials are under. In 2011, NHL's newly-created social media policy restricted referees and linesmen from using social media to make certain statements about games—especially when controversy or critique was involved.

Tim Peel lasted less than a day on Twitter.
The NHL-NHLOA agreement subsequently added a line prohibiting NHL officials from using social media outlets such as Twitter and Facebook entirely. In 2019, the Russian KHL followed suit and banned its officials from social media altogether.

Meanwhile, NBA referees use social media to such a great extent that the official NBA referee twitter account has been known to live tweet games and regularly interact with fans. So at least it's consistently inconsistent.

MLB: At present, umpires are free to have social media accounts, though, as the Drake saga demonstrates, an umpire is an umpire at all times. Will this Drake controversy cause MLB to pursue an NHL-esque ban on umpires using social media during 2019's CBA negotiations or will the league and its umpires seek to develop a less prohibitive yet responsible social media policy? At the very least, it might give an insight to how the secretive CBA addresses social media use...or lack thereof.

For reference, here is the NFHS' social media guidance for sports officials.

Video as follows:

Alternate Link: Rob Drake's Tweet and Umpire Social Media (CCS)


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