July 25, 2011 12:17pm PT by Eriq Gardner
Lawsuit Defends Celebrities' Rights to Say Controversial Things on Twitter
Almost all Hollywood stars have morals clauses in their endorsement contracts preventing them from doing things that might bring a sponsor into public disrepute. But how far does this generic contract language go towards shutting up celebrities on Twitter?
The question is front-and-center in a $1 million lawsuit filed last week by Pittsburgh Steelers running back Rashard Mendenhall against Hanesbrands, Inc. After the football star tweeted controversial opinions, the maker of Champion sporting gear terminated his endorsement deal. Now, Mendenhall is claiming a breach of contract.
Mendenhall has never been shy about voicing socio-political opinions on Twitter. Some of his tweets involved commentaries on women and parenting, which gathered some attention but no actions by Hanesbrands. But then Mendenhall wrote a series of tweets that made headlines.
For example, on the Sept. 11 terrorist attacks, Mendenall wrote, "We'll never know what really happened," and on Osama bin Laden's killing, he wrote, "What kind of person celebrates death? It's amazing how people can HATE a man they have never even heard speak. We've only heard one side."
Mendenhall's followers nearly doubled to about 37,000 after his Osama tweet, but within 48 hours of making it, Hanesbrands informed the football star he would no longer be endorsing their products. Hanesbrands alleges that the tweeting was a violation of an agreement preventing Mendenhall from actions that would bring him "into public disrepute, contempt scandal or ridicule, or tending to shock, insult or offend a majority of the consuming public."
In reaction, Mendenhall has filed a lawsuit, telling a North Carolina federal court, "This case involves the core question of whether an athlete employed as a celebrity endorser loses the right to express opinions simply because the company whose products he endorses might disagree with some (but not all) of these opinions."
According to Benjamin R. Mulcahy, an entertainment lawyer at Sheppard Mullin Richter & Hampton, signing a morals clause is tantamount to giving up the right to express certain opinions. In an interview with Legal Blitz, Mulcahy points out that Mendenhall certainly couldn't say bad things about Hanesbrands products without violating his deal, so he's already agreed to limit his speech.
As for whether opinions on other subjects rise to contemptuous behavior, Mulcahy says, "Asking people to withhold judgment on bin Laden isn’t likely to be defensible as a mere expression of opinion in most circles of this country, and my sense is most people wouldn’t need to take a poll for that."
On the other hand, there's a good case to be made that the morals clause language in Mendenhall's contract is "broad and ambiguous" and therefore unenforceable, except for clear violations like criminal convictions.
Recently, there's been a growing movement in talent contracts to craft contractual language specifically geared at curbing commentary on Twitter and other social media outlets. One might ask if Hanesbrands was concerned about Mendenhall's tweeting, why it didn't pointedly address it at the bargaining table, especially since, as the lawsuit notes, the deal was amended to discuss his reputation, statements and acts.