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The Fourth Amendment Right to Privacy Shouldn’t Discriminate Against Jerks Like Donald Sterling

In the wake of the incidents involving former owner of the Los Angeles Clippers, Donald Sterling, including being banned from the NBA and subject to a fine, the majority of basketball fans and even non-fans have considered his punishments just and warranted. However, despite the fact that Sterling said some admittedly terrible things and deserves what he got, there are some real legal issues lurking in his situation. The violations of personal privacy that may or may not have taken place, and the propriety of the punishment given to him by the NBA, are key issues here.

As most of you know, this matter came about when an audio recording of Sterling making racial comments was made public. In the audio, the Clipper’s owner was beseeching a friend, Ms. Stiviano (a woman his wife alleges is his mistress) not to post pictures of herself with black men on Instagram or to bring them to Clippers games. When the audio was released, the revelations prompted public outcry and resulted in NBA Commissioner Adam Silver to take swift punitive action. While most of us applaud Silver’s actions, from a legal perspective, one might question whether the audio recording should have been released in the first place, or if Sterling should be punished for something he said in the privacy of his own home. Commissioner Silver’s response to this question was quite simple: “Whether or not these remarks were initially shared in private, they are now public, and they represent his views.”

There are, however, laws that play a role here. Most notably, the Fourth Amendment to the United States Constitution, which guarantees the following: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Additionally, under California criminal law (which is similar to Washington law), all parties involved in a conversation have to consent to the recording of what is being said regardless of whether it contains offensive or private remarks or not. Thus, if Sterling was unaware that he was being recorded by Ms. Stiviano, her actions were technically illegal.

Whether or not Sterling gave permission to have his private conversations recorded is a disputed matter. Ms. Stiviano claims that she was given permission to record their exchanges. If this is true, she will likely avoid criminal charges. The U.S. Supreme Court in Katz v. United States has held that the protection of Fourth Amendment can be somewhat diminished if a person does not have a reasonable expectation of privacy. Therefore one could argue that if Sterling was aware he was being recorded; he tacitly gave his permission and should have known his remarks could become public.

Another important aspect of the Fourth Amendment is that it essentially exists to protect individuals from being prosecuted by the federal or state government (through the Fourteenth Amendment). However, in Sterling’s case, we have punishment by the NBA, a private association, not the federal or any state government. If the audiotape was recorded without Sterling’s knowledge, and subsequently used for a criminal proceeding, that illegally obtained recording would most likely be refused as evidence in a court of law. However, the determination of inadmissibility of the recording as evidence would not necessarily pertain to Sterling’s punishment by the NBA through Commissioner Silver. Since there was no federal government involvement in the matter, it could arguably be concluded that there is no Fourth Amendment issue or violation.

In contrast to the above, wiretapping of phone lines by federal agents pursuant to the National Security Act may result in violations of the Fourth Amendment. Violations can occur when government action is taken against an individual that does not give due regard to the safeguards and protections to Americans, as set forth in the Fourth Amendment itself, and/or in a body of complex case law (mostly from the U.S. Supreme Court) that has been  protecting Americans from unnecessary and illegal federal or state government action. However, none of this is relevant to the issue in Donald Sterling’s case with the NBA because there was no federal or state government action involved in the matter; thus, there is no dispute and it is clear that Sterling’s opinions were made available to the public. His privacy may indeed have been violated and those who did so may be criminally liable for the taping of his conversations under state law, but because there was no federal or state government involvement in the punishment he was given, it appears that the NBA and Commissioner Silver were well within their rights to take the actions that they did against him.

If you would like to read more about the Donald Sterling recording and subsequent legal ramifications, check out these links:



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