Private speech and public consequences

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.


  1. colnago80 says

    He may well have a grievance against the person who recorded his words and released them to the media.

    It is my understanding that he was well aware that his former girlfriend was taping the conversation, which, if so, makes the taping entirely legal.

  2. says

    He is being banned and fine[d] for private comments that he did not intend to be released publicly.

    The only thing that’s unusual about this, is that a one-percenter is FINALLY being held accountable in a way similar to how the rest of us shmoes are held accountable by our bosses every fucking day.

    Seriously, ordinary people lose jobs, friends, relationships and other opportunities based on what other people heard them say all the time. Apparently it’s only controversial when it happens to the “nobility.”

  3. says

    I can’t say I’m too concerned. Ted Rall had also said, “Consider journalism’s Rule of Three — one is an incident, twice is a coincidence and three times is a pattern ensured.” He totally admits there was a pattern here. So I don’t necessarily see a problem.

    He later says, “I don’t know about you, but I don’t want to live in a world where every stupid thing I blather over the phone is potential fodder for public comment, Twitter wars and cause for dismissal from work.” Well, I don’t think a world like that could work out too well, because then a lot of people are in trouble, which would be troublesome for companies and their retention rates if they have to be firing people all the time. Also, I think we saw some evidence from your post two days ago about not firing someone for their Twitter mistake that this is not going to be a concern for those occasional incidents. This leaves me to wonder if Rall believes he’d be a multiple offender, displaying a pattern of behavior; if that’s the case, then I’m not sure I would feel too bad.

  4. says

    The fact that he wants to keep such words private shows that he knows they are vile. I don’t think “thought crimes” work, because part of our brains’ function may be presenting us with options we don’t want, but if you have a long-term habit of talking behind people’s backs, the fact that you aren’t doing so to their faces means you fear the consequences of your words.

  5. says

    every stupid thing I blather over the phone is potential fodder for public comment

    The trick is to never blather stupid things at all, then you don’t have to worry about it. It’s much more efficient.

    I see that Some of Sterling’s attackers and defenders (including Kareem Jabal) are saying “well you ALWAYS knew he was like this, it’s inconsistent to get upset now.” That defense might be valid, if you did actually speak your mind openly and always. If someone accuses an openly avowed member of the KKK as being racist, I suppose their defense might amount to, “duh?” What we punish is the appearance of inconsistency -- people who smile to our faces but give us the finger when our backs are turned. Why? Because such people are unquantifiable and we can’t assign them a place on the spectrum from friend to foe. They can even make us question the whole matter of trust, and that brings a heavy load of cognitive dissonance.

  6. Chiroptera says

    Isn’t Sterling a business owner? If my employer were to find out that I said something offensive in a private conversation (like maybe “The US is a rogue nation and it’s a pity the USSR collapsed since they were they only threat credible enough to keep the US under some kind of restraint” or perhaps “all Christians are bunch of perverted pedophiles”), would Sterling be taking my side against my being punished or fired?

  7. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Marcus Ranum:

    They can even make us question the whole matter of trust, and that brings a heavy load of cognitive dissonance.

    This. This is exactly it. Thoroughgoing enemies can be trusted. They are predictable. They can’t be trusted to do what you like, but they can be trusted to react to your public actions in reliable ways.

    Thoroughgoing friends can be trusted. They are predictable.

    Acquaintances that are friendly don’t get our confidences, but we still know where to put them on the spectrum of trust.

    Sterling, with his smiling face in public and vicious racism when backs are turned (even in semi-public, apparently) and -- tellingly -- statements that his racism doesn’t represent his heart makes it impossible to know what’s in the jerk’s heart. Is he a friend who says nasty things in private just to get back at his partner, but that has nothing to do with me? Is he an enemy that treats me politely in public? I can have no idea because he’s perfectly willing to say things that **he will say** are contrary to his “heart”.

    He has explicitly told us that we can’t trust his private statements -- apparently without thought that this might have an impact on whether or not we can trust his public statements. (Because the statement is issued by his PR person, and what motive could a PR person have to be less than open & honest?)

    The wise person treats a man like Sterling as one treats a cobra with its hood open.

    @raging bee


  8. smrnda says

    In the case of a privacy invasion, I would have sympathy for someone who was the victim of revenge porn, who was outed as homosexual when it would clearly lead to discriminatory actions (say, a professor at a Christian degree mill) and such, but if you’re being a nasty bigot, I’m kind of unable to see any reason to show any sympathy. If you aren’t proud of your bigoted opinions, don’t spout them.

    Third the idea that it’s not a patrician who is getting the treatment that plebs have been getting all along.

  9. moarscienceplz says

    Sterling’s recent comments are merely the smoke that reveals the forest fire. Sterling is so rich that only the concerted actions of many people can affect him greatly, and the unfortunate fact is that it takes a certain confluence of events forsuch an issue to go viral.
    If this had been a rare lapse of judgment on the part of a generally admirable person, Sterling could have apologized and donated a few million bucks to the UNCF and that would have been the end of it. We live in a world where people as rich as he can only be punished by a juggernaut powered by the opprobrium of masses of ordinary folks, and he has plenty of resources to stop it if it was undeserved.
    Yes, it would have been more just if he could have received a significant punishment for his slumlord tactics, rather than for just a phone call, but I think we now have plenty of evidence that he deserves punishment for the arc his whole life has taken, and the fact that it was a small thing like a phone call that started the avalanche should not be a reason to let him off the hook.

  10. Jonny Vincent says

    I’ve heard it said that we are both who we are in public and in private, but if the two are not in sync, what we are is fraudulent. I think we’re a combination of both who we are and who we’re not.

    Take this girl, for example. She is not capable of contributing value. She had a brilliant mind once but objectified women perceive minds as obstacles that must be vanquished to secure or retain exclusive control of bodies. “Children should be seen and not heard.” Bodies are seen. Minds are heard. Humans have been reduced to mindless junkies addicted to emotion, fiercely loyal to dealers who keep them jonesing for a fix.

    Sterling gave his dealer $1.8 million. All over the world, pain is being inflicted to induce the need for pain relief. Misery is generated to drive the need to consume. Happiness isn’t profitable, only misery buys relief. The more relief we buy, the more we’ll need. a) We need not to need, or b) We need to shut it down, or c) Pain.

    Society is conditioned (by women) to believe that men use women, a biological impossibility. “Truth is on the side of the oppressed, never the oppressor.” (Malcolm X) Historically, men suffer to please, women are pleased. Men produce value, women reduce. Men pay for sex with love, women are paid for doing what they love. Love blinds so how can wanting it be a virtue? Sterling is the victim. She’s a malicious leech.

    He didn’t want her hanging out with black men. That’s not racism. That’s a compliment. He feels he cannot compete with black men for her affection. He knows he can compete with white men because she is only attracted to rich white men. This isn’t about race. This is about her emotional manipulation triggering his jealousy and latent fears (fear of inadequacy, fear of competition, fear of loss).

    This is about love. This is why love is hate.

  11. Ysidro says

    My in-laws expressed concern that things they said privately could be held against them and my father-in-law especially thought the person making the recording (presumably Ms. Stiviano) should be brought to justice.

    I opined that one could avoid being held accountable for saying such things by never saying such things.

    The point seemed lost.

  12. wilsim says

    V. Stiviano was his official records keeper. He reportedly asked her to record all his conversations.

    Sterling also admitted to commissioner Silver that he knew the conversations were being recorded.

    His rights are not and were not violated in any way.

    The amount of people that are misinformed about this issue is staggering.

  13. Jonny Vincent says

    If I am right, and I am, how can you expect Sterling to say to the world, “I didn’t want her hanging out with black men because I feel they’re better than me and I can’t compete with them?”

    Sterling is a moron, obviously. But how bad a guy could he really be if his estranged ex-wife is coming to his rescue to save him from this little, malicious leech? I think Mrs Sterling’s actions give an insight into his character. He’s a big softie and this girl played his face.

    This world’s witchhunts don’t go after the right witches. Billions of broken bitches, quite frankly; incapable of seeing the reality of emotional cannibalism.

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