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Donald Sterling, Free Speech, and Other Things People Don't Get

By William Peacock, Esq. on April 29, 2014 | Last updated on December 13, 2021

Kick the lout out, they said. They got their wish.

No one is going to mourn Donald Sterling's departure from the NBA. The truth is, it was a long time coming -- his racism was an open secret for years, like the time he refused to rent apartments to black people, or the time be brought women to the Clippers' players' showers and told them to admire the "beautiful black bodies."

Yeah, they certainly won't mourn him. But they are mourning his loss of "free speech."


Yeah, seriously. Deadspin compiled a list of tweets about free speech. A newspaper published a letter to the editor about the "thought police." And Popehat's been retweeting as some sort of online performance art about the need for a more educated America.

We couldn't agree more, and rest assured, as your friends'/family's/clients' legal expert, you'll hear plenty of questions about the First Amendment over the coming days, starting with ...

Does This Mean Free Speech is Dead?

Yes, though it has always been dead when the actor is a private entity. There is no right to free speech at work (unless it's Section 7 speech). There is no right to free speech in a social club. And there is no right that protects an NBA owner from getting the axe from the league for a racist rant that was surreptitiously recorded on tape.

The only way that Sterling's speech would have even a slight chance of speech protection would be if the NBA were a quasi-governmental agency. Wait ...

Are Sports Leagues or Teams Public Entities?

You know, it's not exactly an insane argument. In fact, the argument has been made before, including in a recent (and a second not-so-recent) lawsuit against the Seattle Seahawks.

We said that the argument was made, but it failed miserably. Seattle's Public Stadium Authority actually is a government entity, but the NFL isn't, the team isn't, and no, neither public funds for a stadium nor favorable tax treatment for the league will transform them into quasi-governmental agencies.

And if they aren't public agencies, that makes them ...

Private Actors, Who Can Do Whatever They Want (Almost)

Naturally, your acquaintance/client/mom's next question is going to be: does that mean private parties can do whatever they want?

Pretty much. Sure, there are restrictions. For example, in California, we have the Unruh Civil Rights Act, which would prohibit discrimination on the basis of race, religion, or other arbitrary characteristics. But that's not what he had here, was it?

The NBA isn't discriminating. Their private bylaws (the contract between all owners, the league, and the players) authorize suspensions, fines, and possibly even forced transfer of the team. Not only is free speech not protected when the actor is a private entity (the NBA), but we're willing to bet that the terms of the NBA bylaws waive any rights he may have had.

And Sterling? He loved to employ black people (as players, not as anything more). He just didn't want them attending games, or appearing in photos with his mistress. He didn't do anything illegal -- he's just a terrible person.

That's all the cheat sheet help you'll get from us, at least for now, but if you get any hilarious questions that we somehow missed, tweet us @FindLawLP.

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