1st Amendment and Free Speech/Sterling/NBA

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Question
Michael
I am not condoning Sterlings thoughts, but I believe he had no idea his girlfriend was taping him. Is this an infringement on his right to free speech? He is in the public eye, but if that happened to me,say I was a social worker and made some unkind comments about a minority group, could I get fired? Is there no longer any privacy? If someone records you without your permission and goes public, is that an infringement on your rights?
BTW I am constantly under video surveillance (taped) in my job. I once dropped the 'F' bomb under a very stressfull situation where I was being verbally abused. A witness complained, and I was suspended on review of the tape. When the cameras were installed, we were 'promised' they were for our protection and would never be used against us!
Thanks!

Answer
Hello,

There is no First Amendment protection for actions taken by a private business.  The NBA is not a government entity and is not restricted by any First Amendment limitations.  Mr. Sterling as an owner of a team is part of a partnership, and subject to the partnership agreement.  I don't know the details of that agreement, but presumably there is some clause that allows the actions taken against him to be done.  Many such contracts have a clause allowing such punitive actions if the person does anything that brings embarrassment to the league.

Government employees have some First Amendment protections.  But even government employees are subject to greater actions from speech that could be considered disruptive to the workplace or cause other problems for the employer.  For example, a police office who was regularly verbally abusive to people could be punished for such actions.  Similarly, as you found out, using foul language in front of the public can lead to sanctions.  (I do sympathize with you, however.  I can recall a time when I swore during a particularly heated argument at a work related meeting).

As for being recorded, if Mr. Sterling was not aware he was being recorded, whoever recorded the conversation is probably guilty of a crime under California's wiretap law.  That law requires that all parties to a private conversation be aware of a recording.  In addition to seeing the party who recorded it prosecuted, Mr. Sterling could also sue for damages, which could be in the hundreds of millions of dollars in this case.  But even if it was recorded illegally, the recording can still be used against him by the NBA to punish him.

For employees in a situation like yours, where they are made aware of the recordings and forced to agree to it as a condition of employment, such recordings are generally permissible under most State wiretap laws.

I hope this helps!
- Mike



As far as the taping, most States have  

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Michael Troy

Expertise

I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.

Experience

As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Organizations
Former Attorney for Center for Individual Rights.

Publications
Washington Post
Washington Times

Education/Credentials
J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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