Saturday, May 3, 2014

Thoughts on Donald Sterling and the First Amendment

Yesterday, a former student (and a good one at that) emailed me with the following comments and questions:
Hi Professor Chambless
 A hot topic the past few days has been the NBA Sterling "case." When I first heard what was said I had an immediate emotional reaction as did most of the country, I'm sure. Though the next day I thought about what actually happened; a man had a conversation of opinion with a woman and he is now being attacked from all angles because this woman happened to tape it without his knowledge/permission. I immediately thought of the Freedom of Speech and how he has every right to think and say whatever he wants. I have my own opinions about the disgusting words that were said however, I am more interested in the rights being addressed with this situation. It got me thinking about The Law and whether it pertained to this particular situation and then I read an article by Allen West Folks you're missing the point about Donald Sterling.
With my current knowledge and understanding of The Law, forcing Mr. Sterling to sell his team seems like a violation of private property. The NBA banned him for life; which as an association they have the right to refuse anyone but, do they also have the right to force a sale of a team? Bastiat speaks of plundering but, does that only pertain to government? Knowing that government can and does violate private property; do you think the NBA has been influenced by this form of plunder?
My answer to her - and anyone else who might be interested would be this:
Donald Sterling does have a First Amendment right to divulge his views on race without any government official using force, threats or coercion to make him stop. 
The NBA is not the government.  The NBA has its own set of by-laws, rules and regulations.
I do not know if NBA rules allow the other owners to force him to sell his team.  I have no idea if the head of the NBA is legally allowed to ban him for life for private comments on race.  I would imagine he consulted NBA lawyers before the lifetime ban and lawyers will, of course, determine if the NBA can force the sale of his team.
What is clear - and what is often misunderstood by Americans everywhere - is that we do not have First Amendment protection from our employers when it comes to the idiotic or controversial things we put out in the public domain.  This goes for Twitter, Facebook, Instagram and other ways we might be inclined to share our views.
If I said what he said in a classroom, Valencia would be wise to fire me and no lawyer would take my case on First Amendment grounds.
Can Donald Sterling sue the person who secretly recorded his racist comments?  Perhaps - but that is a matter of state law - not a First Amendment issue.
It might be worth adding that we should all be grateful every time something like this happens and we should perhaps encourage more people like him to feel "safe" to enlighten us with other bigoted views.
When people like Donald Sterling are able to hide their warped view of human beings of other races, the rest of us keep giving them our money by buying their goods and services.  The more of these people we can get to open up and share what their craven hearts look like, the faster we can know which people to not engage in commerce with. 
In the meantime, if you are a closet racist or some other form of unsavory sort, you might want to remember that only government cannot get in the way of your mouth.  Your employer - and your customers - can.


  1. This was a great read!, Thanks Professor it clarified things for me.

  2. Thanks for this opinion. Once again, you add your voice to a subject and manage to say something I've not yet heard. Thank you, Professor.

  3. Sterling is not a closet racist. He has been fined for discrimination based on race. He has a long established history as an open racist. That was all ignored because he is a member of the elite class. Public opinion has just finally caught up with him.
    One penalty that could be imposed is to ban his team from the NBA but that won't happen because of the money.

  4. Well, it would not be fair to penalize his "team" from the NBA because of his actions. I believe the NBA Constitution Bylaws allow removal under certain specific circumstances that don't apply here, but this particular clause under Article 13 of the bylaws might: " d) Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely." In this case, there's been a loss of sponsorship, possible loss of revenue whilst he's an owner, etc. But the bigger question would be, if he is going to be hated to the extent he will be, why would he NOT want to sell. Have a great vacation Prof. Chambless.

  5. Would the team really be penalized? They are contract employees paid by Sterling's business franchise. They are willing and able to fulfill their requirement to play so shouldn't a court side with them to collect their pay? If the business was denied the opportunity to operate and generate income, then Sterling would sell to cut losses. He has already been banned for life by the NBA, but he is still operating his franchise. So what is the effect of the ban? Why should Sterling sell as long as he is making money? If anything, the publicity has increased ticket sales. Clipper's tickets are selling at record prices right now.
    I don't follow sports and don't understand the whole concept of professional sports, but it seems to me that Sterling is a business man who is still making money while everyone fires blanks at him.

  6. I was referring to the comment above mine that said "one penalty could be to ban his team from the NBA". I don't think the team has done anything to get banned for, so I said they shouldn't be penalized.