As the case of the sports reporter who was fired for an anti-Trump tweet continues, and the newspaper founded by Alexander Hamilton hopes to get the lawsuit thrown out of court.
The New York Post has filed a motion to dismiss Bart Hubbuch’s lawsuit, attacking various aspects of the factual and legal claims made by the former reporter and columnist. The case ultimately turns on whether Hubbuch was fired for posting “on his own time, from his own computer, and from his own home” a controversial tweet that compared the inauguration of Donald Trump to Pearl Harbor and 9/11 by listing the month, day, and year of the three occasions. New York Labor Law Section 201-d makes it “unlawful for any employer . . . to discharge from employment . . . an individual . . . because of . . . an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.”
The Post argues that Hubbuch was not “off work hours” by claiming that Hubbuch was indeed on duty on the day of the Trump inauguration, and the accepted his assignment for the day via email sent only three minutes before posting the tweet that spurred his termination. The Post also explains that Hubbuch had previously been counseled for his comments on Twitter, and that he had been informed that, when tweeting, he represents the Post.
“Hubbuch’s tweeting activities were intertwined with his job as sportswriter for the Post and, thus, were not a ‘hobby’ as he claims,” the Post contends.
The motion to dismiss contains a separate — and more convoluted — argument based on the notion that, because Hubbuch claims the newspaper has a conflict of interest given its effort to curry favor with the new administration, the decision to fire Hubbuch based on the tweet was legally permissible. That’s the kind of theory that may impress other lawyers and justify a four-figure hourly rate for the lawyer who came up with it, but the approach also can create P.R. problems for the Post by coming dangerously close to admitting that the Post has a conflict of interest regarding the new presidency, even though all of the appropriate disclaimers were attached to the argument.
The motion to dismiss seeks sanctions against Hubbuch and his lawyer, based on the contention that Hubbuch “has asserted that (1) his January 20th Tweet was sent on a day that was his ‘day off’ and (2) he was told that the Post had no written social media policy,” and that “[t]he documentary evidence submitted on this motion squarely proves those sworn assertions to be fabrications.”
Under normal procedure in civil cases, Hubbuch will submit a written response, the Post will have the last word in writing, and the matter eventually will be presented to the presiding judge for oral argument. Hubbuch can dispute the facts asserted by the Post, the legal arguments made, or both.
In virtually every civil case ever filed, there’s also another side to the story, and Hubbuch and his lawyer are now on the clock to respond to every claim the Post has made in an effort to end the lawsuit before it ever gets rolling.