Sterling Silver

In 1977 a group of Nazis wearing and bearing swastikas marched in Skokie, Illinois. Skokie is a town with a majority Jewish populationⁱ and, having been warned of the upcoming event by the boasting of the Nazis themselves, some citizens attempted to use the legal system to prevent the march from occurring. The lawsuits aimed at doing so worked their way quickly through the court system, and ended when the Supreme Court affirmed the right of the Nazis to march.ⁱⁱ

There is protection of our people, by the First Amendment to the Constitution that established the United States, from intrusion into their right to free speech. That dictum gave the marchers the right to flaunt their prejudices untouched by the authorities. It is a protection, however, from any action by the government, and, at least on paper, does not limit a private organization from deciding what speech it will permit. Thus a newspaper can select which articles, letters, and opinions it will publish, and colleges can evict an individual who disrupts a speaker.ⁱⁱⁱ

Perhaps our laws should protect free speech from attacks by non-governmental groups and individuals – but they don't. There are certain uses of speech that are limited or prohibited by law^iv or by the courts,^v but those are exceptions. (In addition there is some limitation on the use of pejorative speech which targets “protected” minorities; and the government becomes involved when it is used during the commission of a crime. This turns it into a “hate” crime with increased penalties. In this instance however, the government is involved speech which, at the time uttered, is not Constitutionally prohibited.)

But, for the most part, free speech is not a feature that automatically exists outside of government. And we impose added limitations on ourselves and on others.

So Los Angeles Clippers' owner Donald Sterling's racist remarks are not protected. Indeed, Sterling's views have long been known throughout the basketball community.^vi And yesterday NBA Commissioner Adam Silver imposed a lifetime ban on Sterling's participation, in any way, with NBA activities. He also fined Sterling $2,500,000, and asked other team owners to force Sterling to sell the Clippers.^vii Silver's decision has been widely praised, not only by those involved directly in the sport, but by the general public as well.

I must admit that I am disturbed by a law that allows Nazis to spew bigotry and hatred publicly, outside the homes of people whose friends and families were murdered by those whom the marchers admire, while words of bigotry and hatred are not protected privately inside an individual's house. I should have thought the opposite to be true – that we were free to think and believe what we want, and to speak our minds freely within the confines of our own castles (it shouldn't matter that what we said was unpopular or even, as it was in this case, racist) despite their proscription in public.^viii

The widespread dispersion of someone's words or image has been made possible and popular by the internet and the social media. The Supreme Court may have decided that there was a Constitutional right to privacy^ix but the parameters of that right aren't clear. Ideally then, even if speech isn't protected, the right to privacy should limit the damage. Such privacy, though, which used to be the heritage of all except “public figures,”^x now doesn't seem to be available to anyone. In this particular instance, Sterling was recorded “illegally,” but the person who made the recording will probably benefit greatly from the act and is unlikely ever to be punished. The concept of privacy is dead. No longer can you say what you think in public or in private; and you take a risk even thinking it.

I'm a hermit. I don't like to talk to people and I suspect my ideas don't correspond to theirs anyway. If I have prejudices, I'm not going to reveal them to anyone but you.^xi And you're not listening anyway. But sooner or later I'll be “outed” and someone will take issue with what I think. I hope so. I haven't had a good fight all day, and you can't force me out of the NBA.

I         Including a large number of Holocaust survivors.

ii        More precisely, the Court decided that the Illinois Supreme Court's action to stop the march was improper, and the group's First Amendment rights would be violated.

iii      They rarely do however. Academic institutions take pride in allowing “free speech,” especially the “proper” unpopular views. They revel in declarations of their openness to all opinions, emphasizing those popular with the faculty and with minority groups. And many of them defend the disruption of some campus speakers as the exercise of First Amendment rights by those who are disrupting. Since, by doing so, they sacrifice the opportunity for free speech by the speaker, their position is difficult is difficult to justify. Even more so since the Amendment specifically deals with governmental actions.

iv        For example libel or slander.

v        Speech aimed at causing a riot will not be permitted. The classic example is falsely yelling “fire” in a crowded theater. There are, however, other limitations on speech.

vi       Though they never were a matter of much concern until they were “tweeted.”

vii      Whether these decisions are legal is up to the lawyers to argue and the courts to decide, but the remarks attributed to Sterling – and he has admitted to having made them – have been widely condemned.

viii     Actually we should be able to speak our minds publicly as well, but some are too “sensitive” to tolerate that.

ix       Even if the Constitution is unaware of it.

x        Who is a public figure and how can someone decide he doesn't want to be one? Is it possible for someone to assert that he want's his privacy – that the Supreme Court has told him he is Constitutionally entitled to it? And if he makes such an assertion, does it have any meaning?

xi      PETA be damned, I have a very low view of skunks. There. Now I feel better. But don't tell them that or I'll never be allowed in a zoo again. Anyway, they'd probably prefer to eliminate the zoos.