Whatever Happened to Freedom of Speech?

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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


LeBron James: The Good, the Bad, and the Ugly


Now that the “the decision” has been made, here is my take on the entire spectacle:

The Good

Winning and Money.  Lebron James and Chris Bosh made the respectable decision.  The one we so often wish athletes will make: championship before (or in tandem with) money.  This wasn’t entirely a business decision and as a fan, I can appreciate that.  I must point out, however, that because Florida does not have an income tax, these guys did not leave as much on the table as people think, but, nevertheless, they didn’t maximize the financial gain.  They balanced it with the opportunity to win championships.  You need to tip your cap to Lebron on this point.

His Decision.  I appreciate that he made the decision based on what will make him happy and what he felt was in his best interest.  It’s probably clear by now that I am a sports purist, but professional sports is a business afterall.  The only time I found myself agreeing with LeBron last night was when he made the point that his family would not have burned the stadium if the Cavs had released him.  He’s absolutely correct.  What if he suffered a career ending or career stunting injury?  Would the Cavs have resigned him to a max contract out of loyalty?  No way.  There is no reason that he was obligated to sign with the Cavs.  None.

Dan Gilbert’s Letter to the Fans. LOVED this: http://www.nba.com/cavaliers/news/gilbert_letter_100708.html.  I wish this guy owned a team in Philadelphia!  The reviews on ESPN have not been as positive, but I think its great.  The guy simply said what everyone was thinking and tried to energize the city.  This creates a compelling rivalry.  Now I’m interested in LeBron’s first return trip to Cleveland.  Unfortunately, the reason LeBron left is because no on wants to play in Cleveland… so I don’t see how Dan Gilbert’s charge will become a reality.  But it’s got my appreciation.

Donation to Boys & Girls Club.  Give the guy props for donating the revenue from the commercials to the Boys & Girls Club.

The Bad

Boys & Girls Club in Greenwich? Why one of the richest areas in the entire country?  He selected the Club that probably needs the least assistance.  Why not New Orleans?  Or somewhere in Arizona?  Or an area depressed by this economy?  No, he picks the rich kids.  Come on!

Damage to LeBron’s “Brand.” I definitely think this entire spectacle has had a negative impact on his brand.  This process exposed him to a large market of people who never followed LeBron James, the people who are not sports fans.  They did not see the highlight reels, but rather a young man who is so full of himself that he thinks he’s worthy of a primetime special.  LeBron does not understand that he’s just a basketball player.  The guy shoots hoops and tries to sell products for a living.  It absolutely rubbed people the wrong way.  First impressions are hard to overcome and I think LeBron left a bad taste in the mouth of a lot people who were exposed to him for the first time last night.

Opportunity to Become the Greatest Ever. This team has the potential for greatness.  LeBron individually?  I think the ceiling was lowered last night.  He cannot erase the fact that twice he took the team with the best regular season into the playoffs and then failed to reach the NBA Finals.  I still believe that Kobe Bryant and Dwayne Wade are better players and this move solidifies the fact that each will finish their careers with more NBA championships.  LeBron has the potential to be up there, but Kobe will be remembered as the greatest player of the era.  LeBron will not reach the escalon of Jordan, Kobe, and the past dominate greats.

The Ugly

LeBron James Discussing LeBron James. LeBron James was talking in third person last night.  The guys not just out of touch with reality and professionalism, he’s out of touch with himself apparently.  LeBron James should tell LeBron James, when he speaks to him, that he has yet to win an NBA Finals game.

No Respect for Cleveland. I was genuinely surprised last night.  I honestly expected some sort of tribute to Cleveland – a montage, highlight reel, and/or a sincere thank you from LeBron to Cleveland.  I atleast gave the guy that much, but there was nothing!  The guy just said that his true fans will still be his fans.  Where is the respect?  The hometown love?  I honestly believed this guy that far… that he loved Cleveland and wanted to stay there.  “The Decision” showed me otherwise.  This guy thinks Cleveland owes him.

The Spectacle. An hour-long primetime TV special?  For real?  And then, could they have dragged it out any longer?  It was after 9:30pm when he finally made the announcement – the same one that had been leaked earlier in the day.  Like I said, he knows he’s just a basketball player, right?

Hosting the Talks in Cleveland. I love it.  LeBron James is so big that he made the teams come to him.  LeBron is basketball, right?  He is the reason for the high ratings for the NBA Finals this year, right?  Oh wait, no… he was at home watching the series just like I was.  Then, if that’s not bad enough, he does it right in front of the fans of the Cavs… right in front of the business owners… right in front of the kids who wear his jersey.  I believe he knew he was not coming back to Cleveland and, as a result, he should have made a more responsible decision.  Talk about adding insult to injury.

Not Calling Cavs Management. Again, more lack of respect.  He was under no obligation to resign the Cavs, but I’d argue that he was under an obligation to extend the courtesy to them of a personal phonecall notifying them of his choice.  The organization did everything it could for him the past seven years.  They were creative with their moves and maximized their salary cap space.  The owner spent money.  They treated him professionally and with respect… how about some recriprication, LeNone?

Let me know what you think!  Agree or disagree?  And, if you enjoy my blog, click the RSS Feed button on the right and subscribe to my postings!