Manchester NH Criminal defense lawyer who is also a NH Family Law Attorney and Consumer Bankruptcy attorney wonders: Does anybody care about Donald Sterling’s Free Speech Rights? – Reasons why we all should
Just about everyone has seen or heard of the abhorrent, racial slurs and feelings recently manifested by Los Angeles Clippers owner Donald Sterling.
While everybody is quick to condemn him for his thoughts, I hear few, if any people defending his right to speak freely in private. Now don’t get me wrong. I am not for one second adopting or sanctioning the racist views and language which he employed and evidently holds. Clearly, a majority of his very fan base find such racial animus to be offensive and unacceptable.
But to paraphrase Shakespeare, therein lies the rub.
Our free-speech protections were designed to ensure that the government could not impose its will, or the will of the majority, upon the private thoughts and the expression of those thoughts by the minority. While everybody pays lip service to free speech, and while each of us has probably involved our right to speak freely in front of skeptical or hostile listeners, our societal concept of free speech is really limited to what the majority of us find acceptable. When you start talking about offensive positions and topics, such as pornography, racist or ethnic hatred, rap music, a lot of commercial speech, and other “minority” views, many people are not so tolerant.
The First Amendment was placed first for a reason. These are the very views which our forefathers held most sacred. With the incredible foresight that they have shown throughout the ages, their words, concerns and free speech protections remain vital and vibrant today.
Throughout our history, it is been the most offensive and sometimes disgusting speech, which needs protection from censorship. Few people hold the vicious beliefs of the Westboro Baptist Church, and few would approve of their protests at the funerals of deceased military heroes. Even fewer of us can stomach their beliefs, apparently sincerely held, that the deaths of our military heroes in Afghanistan are direct retribution from God for our society’s tolerance of homosexuality. However, it is the most offensive and revolting speech, which is usually not adopted by the majority, which needs the greatest protection in our country.
Donald Sterling, and every other American, has a right to almost complete autonomy with his individual thoughts. Likewise, we have the ability to express our thoughts, and others have the ability to disagree or simply tune us out and not listen to our message.
But what troubles me the most about this entire episode is that Donald Sterling was speaking in private to his mistress (or whatever she is), and expressing his own personal beliefs. He was not speaking on behalf of the National Basketball Association, his team the LA Clippers, or any particular person or entity. Additionally, he never intended his thoughts to be made public.
Unfortunately, for reasons that remain unclear, but he allowed them to be taped and in our media driven world, they soon became fodder for public discourse. And he has since been vilified and exiled for private thoughts he never intended to be discussed by others.
And let us not forget that a large number of Americans hold some if not all of the vicious views held by Mister Sterling. Simply because they do not feel politically correct in expressing them in public, does not mean that they do not harbor those feelings in private. Racism is alive and well in this country, and if anyone thinks those deep seated feelings can be eliminated, by a wave of political correctness, is mistaken. When considering how to best protect fee speech, our forefathers had a vision of a concept known as the “marketplace of ideas”. It was their belief that by protecting the most troubling and disturbing opinions and allowing them to be expressed freely, that those opinions could be debated, dissected, and through exposure, continuing discussion and analysis and ultimately some degree of education, public opinion could be reshaped and reformed.
Look only at the advances over the last 25-50 years made in racial segregation, women’s rights, marriage equality, animal rights, and environmental awareness and protection, to only name a few. A scant few decades ago any of those topics were “minority” opinions, some deemed radical, dangerous, or crazy. In fact, many were scorned outright and rejected by a majority of listeners. However, because of the beauty of free-speech protections, those ideas, although unpopular initially, eventually came to be heard, tested and adopted and have now become part of our mainstream national dialogue.
The will of the majority should never be forcefully imposed upon those in the minority under the guise of political correctness. Our political history, and the very successes enjoyed by the democratic model of government, provide for a gradual reshaping of debate and issues, and a process of frank discussion, education, introspection, and individual changes in perception and thinking, which eventually become political change. While public scorn (censorship) may curb terms and expressions within the arena of what people say in public, it should not be doing so within the arena of private speech. After all, if we cannot express our innermost feelings and beliefs, whether they be opposition to the government, a particular program of the government, or any other action which invites public discussion and debate, what sort of speech rights do we really have?
Censorship is inherently dangerous, because who will censor the censors? For example, it has long been said that free speech does not give one the right to yell fire in a crowded theater. Likewise, the government has been successful in implementing what are known as time, place and manner restrictions on how individuals or groups exercise their rights of free expression. For example, the government can require permits to conduct a parade and rally, regulate the use of roving loudspeakers in an urban neighborhood late in the evening, prohibit repetitive telephone calls that are unwanted and unsolicited, and can also set up certain areas to allow people to exercise their free speech rights, while respecting the rights of others to not be subjected to that display.
This has happened recently in various protests involving both the Westboro Baptists mentioned above, abortion clinics, and protests of various political groups, while candidates and/or elected officials are appearing at public functions. As a general rule, as long as individuals are allowed a neutral and reasonably accessible place and time to exercise their free speech rights, they will not be heard to complain about these types of limitations.
But think about this whole issue for a minute. If we are willing to respect and protect offensive, insulting and other derogatory speech, which we consider to be uncomfortable and out of the mainstream, how can we punish anyone for expressing his personal opinion in what he thought was a private conversation? Isn’t that carrying political correctness to the extreme? And everyone should recognize the danger in stepping out onto that slippery slope.
Who among us has not in anger and likely in private, used words or expressed sentiments that we now regret? And how much has our national dialogue and opinion changed on issues such as gay marriage, marijuana legalization, and other ostensibly private and personal actions upon which the government has seen fit to intrude?
Given the advent of YouTube, Facebook and sundry other instantly accessible information sharing media, information today can be spread in a nano second. So you may someday (soon?) find yourself in the same situation as Donald Sterling. Having a private discussion with someone that you trusted, assuming that your comments are going to remain private, and then having to defend them in an unanticipated fashion from attacks by the entire world.
And although I have not had an opportunity to review in detail the NBA collective bargaining agreement, or otherwise professionally analyze the various positions of the parties, many legal commentators feel, (I believe correctly), that the NBA has no legal basis to strip Mister Sterling of his business . While they may be able to extract monetary fines from him for the potential impact of his comments may have had on the league’s reputation, (a dubious proposition in itself), it appears that they are doing little more than puffing when they speak about stripping Mister Sterling of his livelihood. Whether he elects to fight, or simply be done with the spectacle, walk away and cash out, remains to be seen.
But by making a public spectacle of Donald Sterling, and trying to humiliate him into forsaking his beliefs and feelings, we only serve to drive him and his ideas, and those of many individuals like him, further underground and away from mainstream discussion.
If you think about the marketplace of ideas analogy discussed earlier, you would see that by exposing any idea (or product) to examination and scrutiny by the public, it will be tested, criticized, and that information shared by members of the public to assist them in making similar decisions and their futures. And, more importantly, if you prevent someone from expressing his ideas, however much you or a majority of people may disagree with them, you only serving to stifle the expression of even more ideas, for fear of similar treatment. And then maybe someday, maybe soon, it will be your own ideas that cannot be shared for fear of such treatment.
Finally, think about being in the same position as Donald Sterling, and having to not only defend your private thoughts, but your business and personal assets, from attack from all sides simply because many (or most) people do not like what you are saying. Free speech is not always popular speech, and popular speech by definition, hardly needs much, if any protection.
But we need to vigorously defend the right of every American to freely express his ideas, for the sake of our collective welfare. It is often said that in America a person has a God-given right to be a complete ass. And they should be able express any idea, however crazy, asinine, or non-sensical it may appear to some (or most) of us. That way, the wheat is separated from the chaff, bad ideas are exposed, examined and eventually discarded, good ideas are given life and nourishment and we benefit as a society as a result of that process.
It is true that you have to break a few eggs an omelet, and the small price we pay to defend offensive speech, by protecting and tolerating such speech, pales in comparison to other alternatives. So disagree all you want with Donald Sterling, his thoughts and positions, but respect and stand up for his right to have and express those feelings. And trust in our history and the workings of the marketplace of ideas to eventually expose those ideas, as it has done pretty well for over 230 years of American history.