With the suspension of Donald Sterling has come a trickle of defenders. They’re not so much defending what Sterling said as his right to say it in his own home and not have that leveraged against him to force away his business.
Inherent in this argument are two fundamental rights: the freedom of speech, assured in our First Amendment and the right to privacy, implied in the Fourth Amendment. In order to adequately evaluate whether his rights were violated, it’s necessary to look at these as two separate issues.
There has been an increasingly misunderstood application of the First Amendment. It protects you from prosecution, but it doesn’t assure you safety from consequences of speech.
If I work in a movie theater and walk into the last 10 minutes of every screening and scream out spoilers at the end of the movie, the theater is entitled to fire me. Freedom of speech doesn’t protect me there.
That’s because the Constitution doesn’t apply to what happens between private entities.
Whether it’s NBC refusing to air the Dixie Chicks Shut up and Sing for anti-war comments, A&E suspending Phil Robertson for homophobic slurs or the NBA banning Donald Sterling for racist remarks, it’s all about one private party repudiating another private party for what they said.
Businesses will pull endorsements from athletes or radio personalities all the time because of things they said.
Particularly, if a second party can lead to loss of business, there’s a need to protect the business too. If I feel like my association with you is costing me business because of what you said, do I not have the right to protect my business by ending my association with you?
Donald Sterling belongs to an association of owners. He agreed to abide by certain rules as an owner. Within the rules he agreed to is a stipulation that if 3/4 of owners determine it, he has to sell the team. That’s a part of belonging to an association.
Now you can argue that’s unfair, but all the benefits of that have been with him for years. Sterling’s initial investment has gone up almost $450 million—in spite of horrible ownership—because he belongs to that association.
There is no freedom of speech issue here. Sterling isn’t being prosecuted by the government; he’s being punished by a private association according to terms he already agreed to. The NBA has the legal right to do what it’s doing because it’s a private association.
The operative word is private. Freedom of speech doesn’t assure you protection from consequences of speech; it only guarantees protection from prosecution for speech. The government isn’t jailing Sterling here. And, frankly it would be an overreach for the government to get involved and prevent the punishment from occurring.
But, you argue, that’s all public speech and this is private speech. Isn’t what you say in the privacy of your own home different?
Yes, private speech is different. And, If it were the case that Sterling was unaware he was being recorded, V. Stiviano , the person doing the recording would have been in a great deal of trouble. It’s a felony in California to record someone without their knowing.
And, while that’s great for casting aspersions, it’s also apparently moot because it seems Sterling was fully aware he was being recorded.
The woman on the recording, who goes by the name V. Stiviano, cooperated with the NBA, as did a third person who was in the room when the tapes were made, another source told Shelburne. The woman verified to the league that it was her and Sterling on the tapes, according to the source.Also note the lack of any surprise from the Sterling camp that the tapes existed, and the only challenge was that he had not verified that the tape had been altered. (Since then he has). But note the lack of dismay over the existence of the tape.
Stiviano's lawyer, Mac Nehoray, told the L.A. Times his client didn't have a sexual or romantic relationship with Sterling, "never wanted any harm to Donald" and is "very saddened" by Silver's decision.
The recordings that have been released were made in September, and Sterling knew he was being recorded, the source told Shelburne. Stiviano has several additional hours of audio and video recordings of Sterling, according to the source.
Ergo, we can conclude that he was aware the tape was being made. And apparently there’s at least one other person who has verified that. And with many conversations included her being asked, by Sterling, to play back portions of other conversations, it would appear that the other recordings would also validate that he knew.
And let’s face it. Sterling made his bones by being litigious. If he had that card to play, it would have been the first one he did play. TMZ, Stiviano and the third party would be in court right now.
If Sterling knew he was being recorded, that changes everything, legally speaking. If you know you’re being recorded there is no expectation of privacy in a conversation.
Therefore this is not a case of a man being punished for private remarks made in his own home, it’s the case of public remarks made in his own home being made more public.
Neither Sterling’s freedom of speech nor his right to privacy were violated here. But because there’s an itch that the conservatives have to scratch every time a story along racial lines becomes hot. And that’s an issues worth addressing.
Why the need? Why the insistence to “balance” every story about racism? Not everything is left or right. Some things are just right and wrong. But because the right-wing media is so skewed every national story has to have a “balanced” approach to it, and by “balanced” I mean spun to the right.
No matter how bad an egregious the offense, the conservatives need to try and make it about their agenda. Leave it to the right-wing spin machine to turn “don’t bring black people to my games” into the rights of the white man being plundered.