First Amendment is no refuge for Clippers owner’s remarks

Editor’s note: This is an opinion article from William H. Freivogel, publisher of the Gateway Journalism Review.

Whether viewed from a legal, moral or ethical vantage point, the lifetime ban that NBA commissioner Adam Silver imposed on racist Los Angeles Clippers owner Donald Sterling was just and correct.

After Silver announced the punishment, the Twittersphere exploded with claims that the NBA had violated Sterling’s First Amendment right to free speech.

The problem with that argument is the first word of the First Amendment: Congress. “Congress shall make no law” means the government can’t punish people for their speech. It doesn’t mean a corporation or private groups can’t fire people for saying something stupid and hateful.

Ethicists, who fancy having a corner on the truth, may disagree. Al Tompkins, from the Poynter Institute, was quoted on NPR this week asking, “When does newsworthiness trump privacy?”

There is an easy answer to this naïve rhetorical question: At least since Bill Clinton, and arguably since Justice Louis Brandeis and his law partner Samuel Warren came up with the right to privacy more than a century ago because they were offended by gossip columns about the lavish blue-blood parties thrown by the Warrens.

And all that was long before social media and gossip sites such as TMZ demolished the boundary between private and public. As Silver pointed out, even if Sterling made the comment in a private phone call to his girlfriend, the views are his and are public. And remember, Sterling is a public figure who must realize he sacrifices some of his privacy for his celebrity.

Still, Tompkins asks, “Doesn’t he have the right to say what he believes no matter how reprehensible without fear of someone recording it and putting it online?”

Sure, he has the right to say it. So, too, does the NBA have a right to kick him out for saying it.

Building an ethical argument in favor of protecting Sterling’s privacy is ultimately self-defeating and offensive. In a country tarnished by slavery, segregation and bigotry, can it be possible that ethics requires society to protect a racist behaving like a 21^st century plantation owner?

Sterling might be able to assemble some legal arguments challenging the NBA’s attempt to force him to sell the team. But those efforts are likely to be fruitless, because the NBA’s constitution seems to say the league’s decision is final and owners have waived their right to challenge it in court.

The telephone conversation with V. Stiviano may have been recorded illegally if Sterling didn’t consent.

But just as news organizations print documents illegally leaked by Snowden and Assange, they also print newsworthy recordings that may have been illegally taped. In fact, the U.S. Supreme Court ruled there is a First Amendment right to broadcast illegally recorded conversations.

But does this gossip qualify as news, especially when Russia is seizing eastern Ukraine and people are dying in Syria?

The question answers itself. The Sterling comments have been the most-commented-upon news story of the week.

The nation’s ugly racial history has determined that America’s is destined to struggle with race – even if the Supreme Court’s affirmative action decisions show it is tired of the struggle.

One encouraging sign is that society exacted the maximum punishment on Sterling as an automatic reflex, just as it had last week when Nevada rancher and Tea Party “hero” Cliven Bundy started talking about blacks being better off when they were slaves picking cotton.

We sometimes forget how little time separates us from our institutionally racist past. Those now retiring went to kindergarten at the time Brown v. Board of Education was just desegregating the schools. We lived through segregation and remember that most white parents then disapproved of interracial dating and marriage.

It was only 50 years ago that the Civil Right Act forced restaurants and pools and employers to admit blacks. It may take another 50 years – or more – before we can escape the ghosts of Sterling and Bundy.