As the dust begins to settle on the Donald Sterling controversy with the $2 billion sale of the Los Angeles Clippers, there is an opportunity to answer a question raised by some during the ordeal: what happened to freedom of speech?
Even people who condemn the racism in Sterling’s comments ask: how can a person be punished and forced to sell his team for opinions shared in private? Does not the forced (or coerced) sale of his basketball team violate the man’s freedom of speech? Somewhere along the way, did we all lose one of our American fundamental rights?
Everyone can breathe an initial sigh of relief – the First Amendment is still there protecting you! His case does not present an erosion of our fundamental American rights.
In order to understand how this can be, one needs to understand a basic limitation on our freedom of speech. Our freedom of speech arises from the text of the First Amendment which reads, in relevant part, “Congress shall make no law . . . abridging the freedom of speech.” Those first five words present the most basic limitation on our rights. The protections only apply to the government. In other words, with some limited exceptions (for example, “obscenity” or yelling fire in a crowded theater), you are free to express your opinions without fear of governmental retaliation. You cannot be thrown into jail for criticizing the President or, in the case of Sterling, expressing a racist opinion.
Thus, Sterling’s situation did not violate his First Amendment rights. There were no FBI or LAPD investigations directed at Donald Sterling. The District Attorney did not threaten criminal charges. The government did not coerce the sale of the Clippers by threatening civil legal action. In fact, here, the freedom of speech functioned properly and Sterling’s comments, for better or worse, were protected by the First Amendment.
The First Amendment, however, offers no protection in the “Court of Public Opinion.” As a result, once Donald Sterling admitted that he made those comments, there were no automatic protections for his speech (i.e., if it were all a lie, he would be protected by defamation laws). Legally speaking, public retaliation against Sterling was legal. After all, the players, fans, sports commentators, and even the corporate sponsors who all vehemently condemned Sterling’s speech share the same First Amendment protections as Sterling and are equally entitled to express their views on the matter.
Likewise, the First Amendment provided no protection against the rest of the NBA’s owners taking action against Sterling. The NBA’s constitution, which is an agreement amongst the owners on how to operate the league, may have provided some protection for Sterling’s speech and prevented the coerced sale of the team, but once the league’s finances were threatened by corporate sponsors cancelling sponsorship deals, players threatening to boycott nationally televised playoff games which would jeopardize advertising revenue, and fans refusing to attend games which impacted ticket sales, Sterling’s organizational protections quickly disappeared. Acknowledging this reality, he dropped his legal defense to the owners’ efforts to force him out of the league (and his $1,987,500,000 profit on the sale of the team likely helped too).
The limitations of the First Amendment are important to understand because when it comes to a person’s employment (unless you are employed by the government), involvement in organizations and associations, businesses and partnerships, and other public activities, freedom of speech operates in a very different way. Words and how they are expressed, to whom they are expressed, and where they are expressed can have serious ramifications for which there is no legal protection. As a result, especially in today’s era of social media when everyone’s smart phone can double as an audio or video recording device, it is important to be mindful of the reality that the First Amendment cannot protect you from the public consequences of saying something you may quickly regret.
*Article also published in the June 12, 2014 edition of the Pottstown Mercury