By now you’re probably quite aware of the punishment that the NBA has handed Los Angeles Clippers owner Donald Sterling. Aside from being fined $2.5 million, Sterling is also banned from the NBA for his entire life; as part of this ban, the NBA will be looking to force Sterling to sell the Clippers.
The punishment that’s come down from the NBA follows confirmation from Sterling that it’s indeed his voice which is heard expressing racist views. In fact, according to NBA commissioner Adam Silver, Sterling had no remorse or regret when confirming that the recording was real and not doctored.
You can listen to the recording by checking out the video below from TMZ which is the conversation that Sterling had with his girlfriend.
While the conversation was private and the views expressed within the recording are nothing new to those that have some knowledge of Donald Sterling, because it was leaked, the outcry was just too much for NBA commission Adam Silver to ignore.
The question that remains though is if it was legal to record the conversation and whether it was legal to leak. The legality of this issue is important as Sterling will be looking to fight the NBA which will be facing a legally risky path.
Let’s take a look at a couple of the legal aspects that surround the conversation that took place between Sterling and his mistress of the recorded conversation between Sterling and his alleged mistress, V. Stiviano.
Issue 1: Legality of Recording the Conversation
From a legal standpoint, it’s of utmost importance to determine whether it’s necessary to get consent from only one party “one-party consent” or whether you need consent from all parties prior to recording a conversation, whether it be by phone or in-person. To answer this question, it depends on the state that you are in during the conversation.
The majority of states only require one member of the party to have knowledge of the conversation being recorded for it to be considered legal. However, some states like California which is a “two-party consent” state, requires that anyone that’s involved in the conversation to have knowledge that they are being recorded for it to be considered legal.
Sterling was in California when the conversation took place. Sterling’s expectation of privacy is objective – if there was no consent by Sterling, then his expectation for the conversation that took place between him and V. Stiviano to be private is reasonable. On the other hand, if the call was made by Stiviano and it was done on speaker phone in a public or semi-public place and Sterling was aware of this, then an objective expectation of privacy isn’t present.
So depending on whether Sterling was made aware that he was being recorded or was made aware that the conversation that was taking place was being broadcast in at least a semi-public area, then the conversation may in fact have been recorded illegally.
According to the a statement obtained by the Los Angeles Times from Mac Nehoray, who serves as the legal representation for Stiviano, Sterling was made aware that he was being recorded. However, Nehoray declined to tell the Times why the conversation was being recorded in the first place.
Issue 2: Legality of Leaking Recording
Ethics aside, if we assume that the audio was obtained legally, then there is nothing illegal about leaking the recording to a reporter. Furthermore, the reporters who then took the audio and published it online to disseminate the contents to the public also did nothing illegal.
According to the same article in the Los Angeles Times, lawyer Mac Nehoray states that it wasn’t Stiviano who released the audio.
Issue 3: Is this a Case of First Amendment Violation
Has the freedom of expression been violated in Sterling’s case?
Most definitely not. Sterling has every right to speak his mind and say whatever he pleases just as the public and the NBA also have the freedom to condemn Sterling for his views. Furthermore, the NBA is a private business and therefore has the right to punish Sterling as they see fit.
While we can argue the ethics centered around whether it was morally right or wrong to leak the conversation that took place between Sterling and his mistress, the fact is that legally there was no violation when it comes to issue #2 and issue #3. Most likely this case will be centered around issue #1 and whether there was reasonable expectation for privacy and if Sterling had knowledge of the audio recording taking place.