This article I wrote on CNN.com got a little bit of attention. Much more than I expected.
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Marc wrote: “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.”
I think that we are in a transitional period that will resolve itself. In the future, when everything is public and nothing is private, the importance of private-recordings-made-public will diminish, because there will be so many of them. The value of anything tends to diminish when the availability increases.
I hope that if this recording of Sterling were released, say, 10 years from now, there would be much less interest; and 20 years from now, no one would care at all, because it will be self-evident, by then, that almost everyone will say *something,* sooner or later, that is offensive or embarrassing.
Something that tends to be forgotten is that the only real legal effect of the recordings themselves, at least in regards to Sterling is… nothing. More to the point, from a legal standpoint, the recordings are hearsay and would be inadmissible to show that he committed a crime. In fact, since being bigoted isn’t a crime, Sterling really did nothing wrong at all. The NBA can punish him for violating their club rules, but that’s a private action in a private organization. On the contrary, it seems to me that recording Sterling’s statements without his consent, then releasing them to the public, might have set his girlfriend up for a civil suit against her – probably not for slander, but for business interference and ultimately costing him $2.5 mil, and the loss of his team. (I’ll defer to Marc on the viability of such a suit). Ultimately, it will make us all think a little harder not about whether we can record someone without their knowledge, but about what we intend to do with that recording and what the effect on the person making the secret recording would be. one must ask themselves whether there could be consequences to them personally for making this recording and using it against the other person. Surely this is not the first time this has been considered by the law, and is in large part why recording someone without their knowledge is – and should remain – illegal.
We don’t actually know that the recording WAS without his consent. One pundit on CNN (I can’t remember who, sorry) claimed that Sterling actually did ask her to record him frequently, in a sort of “I can never remember all my genius ideas” kind of way. Who knows if that has any basis in fact, but it’s also worth noting that Sterling or his lawyer has NOT ever come out and said that he was recorded without his knowledge. Or if he did, I missed it.
Is the transition that people who knew what privacy was and held it as important are being replaced with younger people who never knew a world with privacy in it? Hopefully enough people who value privacy will keep up a voice of dissent so 20 years from now people still do care.
I always thought your beliefs and views were protected no matter how wrong they are. If you act on them and do something illegal or harm someone, than you can and should be punished. It seems the only direct harm done here was that Magic’s picture was taken down. If Magic wants to sue for the harm of not having his picture on Instagram go ahead. Sterling did not force her to not bring her friends or tell them personally they could not come. I don’t see that expressing your views in a private conversation is a punishable offense. This could have been in the middle of a disagreement. Who has not said things they did not mean or later regretted in a argument with a spouse or girlfriend? I don’t see any rappers being banned from making music for some derogatory things they have said. What if 70 years ago when the prevailing views were racist MLB. had banned Branch Rickey for life because he told someone he wanted to give Jackie Robinson a tryout.?
This is one reason I love to follow your blog. You go beyond “being tribal” with the issues.
Even unpleasant people have rights, and ironically it is the “actually did the crime” folks who end up standing up for our freedoms.
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I agree with your article, but I think it’s missing some context. The recording was leaked only after Sterling sued his mistress for ruining his marriage. Also, Sterling has said and done reprehensible things before, but the NBA has done nothing until now.
We should still be mad at the person who leaked the recording, but we should also be mad at Sterling for his behavior and the NBA for not reprimanding him sooner.
I believe it is Mrs Sterling who is suing the mistress, is it not?
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