There have been some interesting nuances following the Donald Sterling uproar. Commenter jaytheostrich wondered in a comment on my post yesterday as to whether Sterling’s free speech rights were being violated because he was being punished merely for something he said, and whether it was legal to do so. Another commenter Suido responded by providing a link to an excellent cartoon by xkcd that seems to settle the freedom of speech issue in a pretty convincing way.
But is that simple? George Washington University law professor Jonathan Turley discusses the issue and wonders whether the context of Sterling’s remarks, that they were spoken privately to a single person and that he had a right to expect that his comments would go no further, make the issue murkier than it may seem at first glance.
I have little sympathy for Sterling and found his comments deeply disturbing and unsettling. However, it will be interesting to see if Sterling, who is a lawyer, will fight the fine. He is being banned and fine for private comments that he did not intend to be released publicly. While this is not the government (raising first amendment issues), it is a free speech questions. We have been discussing how government employees like teachers and police officers have been punished for statements and activities in their private lives. I have opposed that trend. In this case, Sterling did not even intend for this comments to go to anyone other than his girlfriend.
The question is where the line is drawn on private comments.
It should be borne in mind that the 30 NBA team owners are essentially a private club that has its own largely secret constitution and the NBA Commissioner Adam Silver is the person charged with enforcing their rules. So the fine and lifetime ban that Silver imposed on Sterling and his call for team owners to force him to sell the team (which apparently requires 75% of the owners to agree) is purely a private matter that Sterling can challenge within that exclusive club.
This is where there is a difference between what Sterling did and the cases that Turley refers to, of people like teachers and police officers who are punished for saying and doing things in their private lives. Their places of employment are not private clubs where the members make whatever rules they like and enforce them as they wish. They are employees who have due process rights that should be followed.
What is interesting is that, as I said before, the fact that Sterling was an awful person with awful views who did awful things was well known within basketball circles. It was all very public apparently. So why did it take this private conversation to bring the house down on him? I think it is because there is something about the way that people speak privately that makes us think that we are learning something about the ‘real’ person. There is a voyeuristic element in nearly all of us that relishes learning what other people want to keep secret and so the release of secrets is more likely to make news than Sterling’s public racism and misogyny and general crassness.
Like Turley, cartoonist and columnist Ted Rall worries about what this might mean for the right of people to express themselves as they wish privately.
Yet there’s a major part of the Sterling story that American journalists aren’t covering. One that’s just as important as the reminder that racism is still thriving in the executive suite — a suite whose profits derive mostly from African-American players, and whose boss has a half-black, half-Mexican girlfriend, no less.
What about Sterling’s privacy rights?
They tell us privacy is dead. Online, between the NSA and the public’s failure to take to the streets to bitch about the NSA, privacy is probably finished.
But what about a private phone call?
V. Stiviano, Sterling’s 31-year-old former mistress, appears to have surreptitiously recorded the call, baiting him into making disgusting remarks for the record and releasing it to the media, including the gossip sites TMZ and Deadspin, in retaliation for a $1.8 million lawsuit filed last week by Sterling’s wife. Mrs. Sterling is seeking the return of an apartment, cash and several cars — communal marital property under California law — that Sterling gave Stiviano.
So what’s my point? Yes, racist thoughts beget racist actions — but that we should only judge people for their actions. Which do include public statements.
Private phone calls are not public statements.
Sterling’s record as a racist was there all along, available to anyone who cared to Google his name. Nothing new has emerged, nothing new is known because of Stiviano’s tape.
If people wanted to protest his racism, they could have, and should have.
Meanwhile, something very precious — the right to talk shit on the phone, even the right of a total jackass to talk shit to his ex-mistress on the phone, with the freedom that only comes with the assumption that only the two people on the call will ever listen to its contents — is in danger.
So are the remarks that people make in private off-limits for public rebuke and retaliation?
I think it is absurd for Sterling or others to claim now that his remarks were made privately and that thus he should not be held accountable for them. Suppose as an example that I speak privately with someone and in the process completely trash a third person who considers me to be his friend. If that person is told what I said, he has every right to be mad at me and cease thinking of me as a friend. It would be absurd for me to tell him that my comments were not meant for his ears and that he thus has to act as if he did not hear me and continue the relationship as before. In other words, I cannot expect to avoid the public consequences of remarks made privately if those remarks are made public. I can get mad at the person to whom I made the remarks for relaying them but that is pretty much the limit of my grievances.
Sterling still retains due process rights that he can exercise. He may well have a grievance against the person who recorded his words and released them to the media. She may well have had motives for doing so that are less than honorable and making the recording may have been illegal. Sterling may also be able to challenge the NBA as to whether they followed their own rules in the sanctions they imposed.
But what Sterling has no grounds for is feeling aggrieved that he is now widely reviled for things he said in private.