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.

the n word

It may be in the darkest corners of our history—and ourselves—that we locate the self-awareness to make positive change.

That thought occurred to me when yesterday I came across a lecture at noon today that takes on the uncomfortable but vital topic of one of the most vile insults that can be uttered. Kudos to the ASU Law School for inviting a speaker to address “The N Word.”

The speaker is Neal Lester, an ASU Foundation Professor of English and the Director of Project Humanities—a surprising choice for a law school speaker, but an inspired one. Lester’s research and his experience as a literary scholar combine to bring to today’s lecture what I’m sure will be a nuanced and incisive commentary.

Here’s how the Law School describes the event:

 “The N-word is unique in American English usage. No other word is so charged with negative meaning and racial insult that its very use is deemed a hostile act, and it is routinely referred to by a well-understood euphemism—’the N-word’—rather than spoken or written explicitly. … This program will be moderated by Professor Myles Lynk of the Sandra Day O’Connor College of Law. College of Law Professor James Weinstein will offer comments after Dr. Lester’s presentation.”

Whether or not you can attend today, you may enjoy a Q&A with Lester on the site Teaching Tolerance, where the scholar is described:

“Neal A. Lester, dean of humanities and former chair of the English department at Arizona State University, recognized that the complexity of the n-word’s evolution demanded greater critical attention. In 2008, he taught the first ever college-level class designed to explore the word ‘nigger’ (which will be referred to as the n-word). Lester said the subject fascinated him precisely because he didn’t understand its layered complexities.”

ASU Foundation Professor Neal Lester

ASU Foundation Professor Neal Lester

Coincidentally, it was another ASU Law School event that suggested to me that hard issues may often be best met at an angle rather than head-on. (Not an original idea. In The Rings of Saturn, the great German author W. G. Sebald pondered how to present his resistant countrymen some hard messages about its 20th-century genocidal history. He opted for a compelling and subtle stroll—plus commentary—through English towns. Your careful read is rewarded.)

Last fall, I attended a striking ASU debate between scholars over the nature of hate speech (it also included Professor James Weinstein). They pondered a question we Americans tend to think is a settled issue: Is it best to meet hate speech with regulation, or simply with more speech?

I wrote about the event here, and I still wonder whether our “more speech” antidote is a cure or just a placebo.

Meantime, someone I respect greatly pointed me to an arresting quotation of the poet Maya Angelou, which I leave you with:

“The plague of racism is insidious, entering into our minds as smoothly and quietly and invisibly as floating airborne microbes enter into our bodies to find lifelong purchase in our bloodstreams.”

If anyone attends today’s lecture and wants to write a blog post (with a cellphone photo or two), contact me at arizona.attorney@azbar.org.