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SPOTLIGHT
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Donald Sterling and free speech

Published on -5/11/2014, 5:53 PM

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What's left to say about the ugly, racist views of Los Angeles Clippers owner Donald Sterling and the vocal reactions to his comments?

Well, from a First Amendment free expression perspective, several things -- some of which might well resonate even longer than Sterling's repugnant remarks and the lifetime ban imposed on him by Adam Silver, commissioner of the National Basketball Association.

Sterling's views came to light via a "leaked" audiotape given to a relatively new kind of news media, TMZ.com, which is positioned somewhere between a host of serious news media outlets and a long line of popular and widely read Hollywood gossip columns and magazines.

Not long ago, a digital media outlet like TMZ.com -- and online phenoms such as Twitter and Facebook -- would not have been able to create the kind of national discussion and rhetorical firestorm that followed the first TMZ.com reports of Sterling's private-remarks-made-public.

But no longer.

A Pew Research Center's journalism report on the State of the News Media 2014 found "digital players have exploded onto the news scene, bringing technological know-how and new money and luring top talent. BuzzFeed, once scoffed at for content viewed as 'click bait,' now has a news staff of 170."

The Sterling incident was yet another example of what the First Amendment's protection of speech is all about. The amendment restrains government from controlling or punishing most kinds of speech. But nothing in the 45 words shielded the billionaire from public revulsion over his views, suspended endorsement deals, instant campaigns to boycott Clipper tickets and a $2.5 million fine.

The widespread criticism of Sterling echoed earlier public revulsion over negative racial comments by Nevada rancher Cliven Bundy, who attracted national attention about the same time as Sterling. Welcome to another aspect of free speech protected by the First Amendment: The "marketplace of ideas."

The amendment's guarantee of freedom to speak one's mind without government restriction or penalty doesn't bring with it any assurance the speaker will find acceptance or be insulated from critics and negative public reaction. That particular civics lesson rings true across the political spectrum and during the last decade and more.

Still, some people are confused over what the First Amendment does and does not do. Witness what a CBS Radio report datelined from Charlotte, N.C., called a "Twitter firestorm" following the NBA sanctions against Sterling.

"I guess Donald Sterling is not allowed to use his First Amendment rights," said one post attributed to "Joey Bag O' Donuts."

Calling the NBA sanctions "ridiculous," another tweet, attributed to "Zac Palmer" asked, "Are we just taking his First Amendment rights away?"

Sterling might attempt some legal action against the person who made the tape -- presumably without his knowledge. But that would be a civil lawsuit, likely involving state privacy laws in California where the tape is said to have been made. No First Amendment claim applies here -- there is no government involvement. And for the record, there is no Fourth Amendment claim (unlawful search and seizure) either, for the same reason.

Owner groups govern their leagues but are not government. They are privately held associations, and when purchasing a team, that person or group agrees to abide by the association's rules and regulations. In the NBA's case, it's Article 24(l) of the league's constitution that empowered Silver to act in the "best interests of the Association."

Silver said Sterling's remarks were "contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multi-ethnic league."

We're more able to be heard and more likely to be heard by many in today's digital world. But as Sterling and others have demonstrated all too well, we're also more likely than ever to be held accountable by many for our views.

Or as one might tweet: "Freedom of speech works in both directions."

Gene Policinski is chief operating officer of Newseum Institute and senior vice president of the Institute's First Amendment Center.

gpolicinski@newseum.org

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