JURIST Guest Columnist Tung Yin of the Lewis & Clark Law School comments on the statement made by Donald Sterling and how the public outcry should give us pause to consider the underlying issues …

Unless you’ve been completely avoiding TV, the Internet, newspapers, magazines and likely your family members and colleagues, it’s hard not to have heard about Donald Sterling, the soon-to-be-ex(?)-owner of the Los Angeles Clippers. Sterling made comments in private to his mistress that might charitably be described as offensive and bigoted. Apparently unknown to Sterling, his mistress, V. Stiviano, was tape-recording the conversation, and someone later leaked that recording to the mass media. Public outrage erupted immediately, and four days later, NBA commissioner Adam Silver delivered harsh justice, banning Sterling for life and fining him $2.5 million.

Thereafter, provocative talk show host Bill Maher, among others, pushed back against the conventional wisdom. Without defending Sterling’s actual comments (who could?), Maher expressed concern about the privacy implications of the public flogging of a person for comments made privately: “So let me get this straight, we should concede that there’s no such thing anymore as a private conversation, so therefore remember to ‘lawyer’ everything you say before you say it, and hey, speaking your mind was overrated anyway, so you won’t miss it. Well, I’ll miss it, I’ll miss it a lot.”

CNN political analyst Marc Lamont Hill jumped in, making the correct but rather legalistic point that this was not a free speech issue, because Sterling was free to say what he did; he just wasn’t free from the inevitable public consequences flowing from public disgust over what he said. The NBA surely didn’t have to stand by helplessly while Sterling unwittingly, but definitely, set fire to a rising basketball franchise simply because of some principle of “free speech.”

While Maher’s rant did rely in part on the notion of free speech, I think Hill overlooked the more subtle and difficult point that Maher was raising. Whether the NBA could and should have sanctioned Sterling once the offensive statements became public was a separate issue from whether society should condone the public disclosure of a private conversation without the consent of the speaker, at least in the absence of potential legal sanctions or administrative investigations for which the statements might be evidence but not the violations themselves.

In one way, we can perhaps say that the state of California has already determined that recordings of such private conversations should not be disclosed in such circumstances, having made it a state crime to record a conversation without the consent of all parties; note, however, that California is in the minority of states in enacting a “two-party consent” rule, as the federal government and 38 states require only that one party to the conversation consent to the recording. Yet, eavesdropping and wiretapping laws do not fully answer Maher’s point, because (1) that something is not illegal does not mean it is something that ought to be done; and (2) the recording of the conversation in some ways distracts from the fact of the conversation—that is, the only difference between what happened and an alternate scenario where Stiviano did not record the conversation but disclosed her own recollection of it to the press is evidentiary in that the recording would be more credible than Stiviano’s testimony.

Once we put the issue of the recording aside, we can see that the concern that Maher and others have raised is really akin to the mixed feelings that we may have about “tattling,” or if you prefer, whistleblowing. On the one hand, without the tattletale, we might never learn about the misdeeds of other persons. Obviously, the gravity of the misdeed influences how we grateful are to hear about it, even if “it” concerns private speech.

Consider, for example, the critical role that informants and undercover agents play in revealing incriminating statements that criminal targets make in seemingly private conversations. Sometimes the informant or undercover agent will be wearing a wire, and thus law enforcement will get a true audio recording of the conversation (just like Stiviano’s recording of Sterling’s comments). In Hoffa v. United States, the U.S. Supreme Court suggested that it not only tolerated but actually approved of such investigative approaches, because any notion of privacy that the defendant might have expected was merely illusory and the result of “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”

Of course, Hoffa dealt with the scope of the Fourth Amendment, whose restrictions apply only to government actors, not private individuals like Stiviano and the NBA. But the underlying theme of Hoffa—buyer beware in terms of who you are speaking to—is reflected broadly in criminal law, most notably in American conspiracy law. One of the reasons that statements made by co-conspirators during and in furtherance of the conspiracy is not hearsay and is therefore generally admissible evidence against all conspirators is that such an evidentiary approach destabilizes conspiracies, forcing conspirators to waste energies monitoring one another.

But there is an important difference between statements in furtherance of criminal conspiracies versus Sterling’s offensive and bigoted directives to his mistress. If would-be criminal conspirators are deterred from making crime-facilitating statements in private, that is a pleasant side-effect of, but not the main reason for society’s tolerance (if not encouragement) of the public disclosure of such statements. Rather, such disclosure helps achieve the goal of enforcing criminal law by producing relevant, inculpatory evidence that might otherwise not be obtained through other traditional investigative methods. The same is true in the civil arena, where a private conversation might be probative of a civil litigant’s state of mind; for example, a racist or bigoted comment might well be relevant evidence in an employment discrimination lawsuit—again, furthering the goal of enforcing civil law.

What should give us pause about the disclosure in Sterling’s situation is that the leaked recording doesn’t seem to have been relevant to any pending lawsuit. It certainly revealed him to have made offensive and bigoted statements (and in that sense certainly worthy of the public condemnation he’s received). But if the only end purpose of the leak has been to subject him to such obloquy, we can easily imagine situations in which analogous disclosure would be a decidedly bad outcome. Consider the underlying issue in NAACP v. Alabama, where the state of Alabama sought to compel disclosure of the local NAACP affiliate’s membership list. In rejecting the state’s argument, the Supreme Court noted that “[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” No doubt part of the court’s concern was that public disclosure of the membership list could subject the members to physical harm, but even without the threat of violence, the court anticipated “economic reprisal, loss of employment, . . . and other manifestations of public hostility,” which sounds awfully similar to what Sterling has suffered.

We may already live in a world where (mostly) celebrities and politicians should worry about whether every private conversation might be leaked, including in recorded form, simply to entertain, titillate or shock the public. Several years ago, actor Alec Baldwin suffered the ignominy of having a “volcanic tirade of threats and insults on his 11-year-old daughter” leaked to TMZ, which gleefully released the recording. Others who have felt such betrayals include Mel Gibson, David Hasselhoff and Tiger Woods. While public condemnation and/or economic boycott of the offending speaker is quite understandable, perhaps some measure of outrage should also be directed at the leakers (and in Sterling’s case, surreptitious recorder) where the only apparent goal is to subject the speaker to public ridicule.

Tung Yin is a professor of law at Lewis & Clark Law School. Prior to joining the faculty at Lewis & Clark Law School, professor Yin served as a law clerk to the late Hon. Edward Rafeedie of the US District Court for the Central District of California, the late Hon. William J. Holloway, Jr., of the US Court of Appeals for the Tenth Circuit, and the Hon. J. Clifford Wallace of the US Court of Appeals for the Ninth Circuit.

Suggested Citation: Tung Yin, Donald Sterling and Bad Things Said in “Private,” JURIST – Forum, June 30, 2014, http://jurist.org/forum/2014/06/tung-yin-sterling-privacy.php