Is the First Amendment really implicated in the Donald Sterling/LA Clippers case? (Um, no)

Is the First Amendment really implicated in the Donald Sterling/LA Clippers case?

Is there any amendment more misunderstood than the First?

As the brouhaha over LA Clippers team owner Donald Sterling heated up this month, you also may have engaged in a face palm. Why? More and more commentators and random commenters alluded to whether Sterling’s “First Amendment rights” were violated when the NBA issued its punitive edict.

Can we please recall that the First Amendment protects your speech against government interference? Yes, organized sports in this country may have received government subsidies, and they may have benefited from special consideration by government agencies. But the NBA is not the government. And that’s the specter the First Amendment protects against.

I was pleased to read a CNN op-ed that opens with that very point. And it adds to the pleasure that the writer, Marc Randazza, is an Arizona-admitted lawyer. (Yes, he’s admitted elsewhere too.)

Randazza doesn’t stop with the First Amendment discussion, though. He jumps into the controversial question of the propriety of the NBA’s lifetime ban. Not to hide the ball, Randazza thinks it is inappropriate. Why?

“Start with illegal. In California, you can’t record a conversation without the knowledge or consent of both parties. The recording featuring Sterling and V. Stiviano may be the result of a crime. Once she gathered this information, someone leaked it (she denies it was her) — and it went viral. This is where I think things went morally wrong.”

Marc J Randazza

Marc J. Randazza

“We all say things in private that we might not say in public. Sometimes we have ideas that are not fully developed—we try them out with our closest friends. Consider it our test-marketplace of ideas. As our ideas develop, we consider whether to make them public. Should we not all have the freedom to make that choice on our own?”

“Think about what his public character execution means. It means that we now live in a world where if you have any views that are unpopular, you now not only need to fear saying them in public, but you need to fear saying them at all—even to your intimate friends. They might be recording you, and then that recording may be spread across the Internet for everyone to hear.”

Read Randazza’s whole commentary here.

Sterling has yet to respond publicly to the NBA’s decision. It’s not hard to imagine that his counter-gambit could be a lawsuit, which would stretch out to time immemorial the 15 minutes of this scandal’s life.

A hat tip to Unwashed Advocate, for pointing out the Randazza op-ed. UA has good stuff and is worth a follow. To get started, be sure to read and enjoy his blog’s “rules of engagement.”

So what do you think about the penalty levied by the NBA? Over the top? Potentially a violation of its own rules? Do you anticipate a lawsuit, and on what grounds? Write to me at arizona.attorney@azbar.org.

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