CRIMINAL JUSTICE SALT LAKE COMMUNITY COLLEGE

Dont Cite the First,

Plead the Fifth
Repercussions of our Right to Free Speech

Jarren Young
5/1/2014




How an NBA owner swiftly fell from the good graces of the league to get a lifetime ban and a multi-
million dollar fine. But were his First Amendment rights infringed on?
For anyone that may have been hiding under a rock over the last week, there has been a breaking
story that not only affects our culture, ties into the original intent and ramifications of the
Constitution of the United States and the First Amendment, but may set a dangerous precedence
for generations to come.
This all began just a few days ago, on Saturday April 24
th
. The NBAs 81-year-old Los Angeles
Clippers owner, Donald Sterling, is under public scrutiny for speaking inexplicably racist
comments in the home of his 31-year-old mistress, Vanessa Stiviano. The conversation was
recorded by his girlfriend, Stiviano. This 15-minute audio recording was leaked to a reputable
news organization on Saturday, just weeks after their heated argument was recorded on April 9
th
.
But why should this have anything to do with the first Amendment? I will tell you why it
shouldnt.
Sterling, who is a lawyer turned real estate mogul, told his girlfriend in the recording that he does
not want her posting pictures on her social media pages with her black or minority friends. She
posted a picture earlier that day with her and Magic Johnson when she met him for the first time
moments before. Sterling was also adamant about her not bringing black people or any
minorities to his games, including NBA all-time great Magic Johnson and current L.A. Dodgers
outfielder Matt Kemp, and it's all on tape.
Sterling rails on Stiviano -- who ironically is black and Mexican -- for putting herself out in
public with a black person. But it doesn't end there. You have to listen to the audio to fully grasp
the magnitude of Sterling's racist worldview. But among the comments:
"It bothers me a lot that you want to broadcast that youre associating with black people. Do you
have to?"
"You can sleep with [black people]. You can bring them in, you can do whatever you want. The
little I ask you is not to promote it on that ... and not to bring them to my games."
"Im just saying, in your lousy [expletive] Instagrams, you dont have to have yourself with,
walking with black people."
"...Don't put him [Magic] on an Instagram for the world to have to see so they have to call me.
And don't bring him to my games."
Also, in referring to his black players that play for his team, he states:
.I support them and give them food, and clothes, and cars, and houses. Who gives it to them?
Does someone else give it to them? Do I know that I haveWho makes the game? Do I make the
game, or do they make the game? Is there 30 owners, that created the league?
Dont even get me started on that comment he made. He is so narrow minded and arrogant
enough to think that he made these athletes who they are. So is he trying to say that they didnt
earn everything they got? They are the ones who spent countless hours practicing, traveling,
sacrificing, and making their game better in the hopes that one day they might be able to make it
to as a professional basketball player. But according to Sterling, he made them. He gave them
money, so he gave them the skill too? All I can say is it is sounding like he has slave-mentality
as if he owns a plantation in the 1800s. This is just plain ignorance and he deserves everything
that comes his way.
Sterling has a documented history of allegedly racist behavior -- he's been sued twice by the
federal government for allegedly refusing to rent apartments to Blacks and Latinos.
He was also sued by former Clippers exec Elgin Baylor for racial discrimination -- though a jury
was ultimately not convinced and shot down Baylor's case.
Sterling has been separated from his wife Shelly for years. She remains a key player in running
the team and was recently quoted by saying she is "mortified" by Sterling's comments.
The magnitude of these recordings reverberated significantly among the NBA community, a
league that consists mainly of minority players, coaches, staff and employees. Significantly
enough, the Clippers gathered at center court before Game 4 on Sunday in their first-round series
against the Golden State Warriors and took off their Clippers warm-up shirts and left them there.
They then warmed up wearing inside-out red shooting shirts that did not display the Clippers
name or logo. During the game, players wore black arm or wrist bands and black socks.
This story quickly caught wind and became an upheaval not only within the NBA community,
but within the United States culture as a whole. Within a 72-hour timeframe (from when the
recordings were released) the Commissioner of the NBA, Adam Silver, held a press conference
and levied Sterling's punishment of a lifetime ban from any affiliation with the NBA and $2.5
million fine, the maximum amount allowed per league guidelines.
Silver's decision was met with immediate support from NBA owners, players and others
connected to the league who have been calling for swift, firm punishment ever since the
surfacing of the audio recording featuring the incendiary comments.
"I hope that every bigot in this country sees what happened to Mr. Sterling and recognizes that if
he can fall, so can you," Sacramento Mayor Kevin Johnson, a former NBA All-Star who was
tasked with leading the NBA players union's efforts on this matter.
Under the lifetime ban, Sterling is prohibited from attending NBA games or practices, stepping
foot inside any Clippers' facility, taking part in business or personnel decisions, or having a role
in league activities such as attending NBA Board of Governors meetings.
Silver, who succeeded longtime NBA leader David Stern in February, also insisted he will do
"everything in my power" to compel the NBA Board of Governors to "force a sale" of the
Clippers. The commissioner said "I fully expect" to get the needed three-quarters of the league's
owners -- meaning at least 23 -- to back the move, though Sterling could fight any such move in
court.
If Sterling does sell the team, he stands to profit considerably: He bought the Clippers for $12
million in 1981, and the team is now worth $575 million, according to Forbes magazine. And
he'd likely have plenty of suitors interested in buying the team.
However, with a detailed backdrop laid out, and with all cards on the table, to me this is not an
issue of the enraged rantings from an old lunatic, who has been confirmed to have had many
past transgressions against blacks and minorities, dating back several decades. No, this is not an
issue of whether he has the freedom and rights to say these things behind closed doors; he
unquestionably has that right to say what he wants, when he wants, and particularly in the
confines of his own home.
The Constitution of the United States and the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
According to our nations First Amendment, there is no law abridging the freedom of speech of
Donald Sterling. He unequivocally has the freedoms to say these things and not face our judicial
system. But what he needs to realize, and what the people backing him need to realize is that,
although we have those freedoms, we do not have freedom from public persecution and
repercussion from our actions within the confines of business.
According to Marc J. Randazza, of CNN.com, While he did have some rights violated, his First
Amendment rights remain intact.
The First Amendment protects you from the government punishing you because of your speech.
The NBA is a private club, and it can discipline Sterling all it wants.
What about criticism? Are we all violating his First Amendment rights by criticizing him? We
are punishing him for his speech.
Nope. The First Amendment does not insulate you from criticism. In fact, that's the First
Amendment in action. That is how the marketplace of ideas works. We float our ideas in the
marketplace, and we see which idea sells.
Most everyone would agree that Sterling's ideas fail in the marketplace of ideas. What
happened to him may have been illegal and was morally wrong.
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.
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?
With Sterling, it is not that we found a bigot and dragged him to the gallows in the middle of
the marketplace of ideas. The Sterling story is about how there is no more privacy. We live in a
world where you can share your intimate photos with your lover, and they will wind up on a
"revenge porn" website, explains Randazza.
Unfortunately, the reality is we live in a world where our intimate conversations can and will be
recorded and blasted to billions of listeners. We live in a world where, say a gold digger can
spy on her sugar daddy, and the world says that the creepy old guy is the bad guy.
In this story, there are two villains. Sterling represents the bad old days. But Stiviano's behavior
represents the horrifying future. Shouldn't we condemn the complete breakdown of privacy and
trust at least as loudly as we condemn some old man's racist blathering?
Again, what was said by Sterling was completely and utterly ignorant and racist, but his first
amendment rights have not been scathed by any stretch of the imagination. I dont recall reading
the First Amendment and seeing a clause that states we all should own an NBA franchise no
matter what we do or say to others. It is plain and simple, straight-forward thinking on this one.
In Sterlings case, he is or rather, was a part of an elite fraternity of only 30 billionaires
with the luxury of owning an NBA Franchise. Owning an NBA team is not a right, it is a luxury.
In that extremely exclusive group of wealthy individuals there are rules and regulations one must
abide by.
For example if I were at work and I start making incendiary comments about other peoples
faith, race, or culture, I would probably lose my job; swiftly and without question. So why
doesnt that fall within the threshold of the United States Constitution? Simply because we are
free from judicial persecution, but not free to say whatever we want without ramification from
our employers or fellow communitys public opinion.
In this day and age, we are all in a position that any of our private conversations has a chance of
being recorded. There are laws protecting individuals from being recorded without their
knowledge. In fact, what his Mistress did is illegal in almost every jurisdiction in the United
States. The most Sterling and his attorneys can prove is that he should not be legally held
accountable for what he said. However that does not mean he is legally eligible to overturn the
ruling from the Commissioner. There is most-likely not going to be an opportunity for Sterling
to squeeze his way back to the forefront of being a part of the elite group lucky enough to call
themselves an NBA owner. Lets just admit it, they are held to higher standards in the court of
public opinion.
For example, nobody bats an eye when there are groups like the Westboro Baptist Church when
they take to the streets to express their first amendment rights. This organization, of only about
40 members, is an American unaffiliated Baptist church known for its extreme ideologies,
especially those against gay people. The church is widely described as a hate group. But most of
us understand that it is their given right to express themselves freely, even if we roll our eyes and
completely disagree with their point of views. But one major difference is they are not trying to
own an NBA franchise!
The level of scrutiny is on a much higher level for these multi-billion dollar owners. What
Donald Sterling did when categorically wrong, on many levels. But what he has yet to do is
going to be worse. He is mounting a large and aggressive lawsuit with his team of highly
experienced and highly motivated attorneys to go after the league for retribution.
The Clippers banned owner has a history of waging expensive legal fights against his enemies.
But recently, experts on sports law said that he would probably not be able to persuade a judge to
overturn all of what the leagues commissioner had done.
The problem is that Sterling, as an NBA owner, had agreed to be bound by the NBAs
constitution. And that document gives the leagues commissioner, Adam Silver, broad powers to
punish owners for actions including conduct prejudicial or detrimental to the league. Silver
announced that he would fine Sterling $2.5 million, impose a lifetime team and NBA ban, and
try to force a sale of the franchise.
Experts said the best of Sterlings legal options would be trying to stop a forced sale of his team.
That decision must be approved by three-quarters of the NBAs owners. Sterling could stop it by
persuading enough owners to reject the motion, or if that doesnt work by persuading a
judge to throw out the owners vote.
But even that wouldnt be much of a victory. It would only allow Sterling to keep ownership of a
team he couldnt run a business that might rapidly drown under the weight of his bad
reputation.
He may be a belligerent S.O.B., but hes not insane, said Gary R. Roberts, a professor of sports
law at Indiana University. I dont think that the other league owners are going to be able legally
to kick him out. But theyre not going to have to. This guy doesnt want to own a business that
will be bankrupt in short order.
In recent years, major sports leagues have been inclined to deal with misbehaving owners with
suspensions and with behind-the-scenes pressure to sell out. In the 1990s, for instance,
Cincinnati Reds owner Marge Schott was suspended by Major League Baseball after making a
series of racially offensive comments. When the suspension was over, Schott abruptly sold.
But Sterlings case has been handled more forcefully. The recording of his offensive remarks to
his girlfriend, in which Sterling told her dont bring black people to Clippers games, was made
public while the Clippers were playing in the first round of the NBA playoffs. It also involved
one of the leagues most reviled figures: Sterling, an owner who had been repeatedly accused of
offensive comments in the past.
Now to cite a renowned Sports TV and Radio personality, Jim Rome, I wanted to end this paper
by including his rant I heard on the radio just the other day. I felt I had to include this because
not only is it a perfect cap to the point I am trying to make, it is so eloquently said.
Now, every time someone gets wrecked for something they say, [everyone] comes running in to
shout about the first amendment.
Adam Silver smashing Donald Sterling has nothing to do with the first amendment. And if
youre saying that it does, it means you havent read the first amendment. What the first
amendment actually says is: Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
James Madison wasnt rolling in his grave during Adam Silvers presser. Because Congress
isnt punishing Donald Sterling, the NBA is. Sterling has the right to say whatever he wants and
the NBA has the right to punish him for it. Congress cant punish him for what he said, but
Adam Silver can. And did. Sterling isnt going to jail. And Silver isnt stripping him of his right
to free speech; hes stripping him of his right to own an NBA team.
Owning an NBA team is not inalienable right. And this bigot was extremely bad for business,
so his partners kicked him to the curb. The first step in citing the first amendment is actually
knowing what it is. Until you do dont cite the first, plead the fifth.
Well said, Jim. Well said.




Biography
Botelho, Greg , and Matt Smith. "NBA commissioner bans Clippers owner Sterling,
pushes to 'force a sale' of team." . CNN, 29 Apr. 2014. Web. 30 Apr. 2014.
<http://www.cnn.com/2014/04/29/us/clippers-sterling-scandal/>.
Fahrenthold, David A., and Matt Zapotosky. "Legally, Donald Sterlings ban is likely a
done deal; teams sale is a more complicated matter." . The Washington Post, 29 Apr.
2014. Web. 1 May 2014. <http://www.washingtonpost.com/politics/legally-nba-ban-is-
likely-a-done-deal-team-sale-is-a-more-complicated-matter/2014/04/29/2b4217c0-cfd3-
11e3-a6b1-45c4dffb85a6_story.html>.
Markazi, Arash. "Clippers stage silent protest." ESPN LA 28 Apr. 2014, sec. Sports : n.
pag. Print.
Randazza, Marc. "What happened to Sterling was morally wrong." <i></i>. CNN.com ,
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sterling-privacy/&gt;.
Rome, Jim . Jim Rome. CBS, Los Angeles Dont cite the First, Plead the Fifth 30 Apr.
2014. Web. Transcript.
TMZ, Staff. "L.A. Clippers Owner to GF: Don't Bring Black People to My Games ...
Including Magic Johnson." . TMZ, 25 Apr. 2014. Web. 30 Apr. 2014.
<http://www.tmz.com/2014/04/26/donald-sterling-clippers-owner-black-people-racist-
audio-magic-johnson/>.
United States, Congress. "First Amendment to the United States Constitution." .
Wikipedia, 15 Dec. 1791. Web. .
<http://en.wikipedia.org/wiki/Freedom_of_speech_in_the_United_States#First_Amendm
ent>.