Donald Sterling, Free Speech, Constitution and a Slippery Slope for NBA Owners

Dan Levy@danlevythinksNational Lead WriterApril 30, 2014

AP Images

The most shocking realization within this Donald Sterling saga was not that new NBA commissioner Adam Silver stepped up in a huge way by banning the embattled Los Angeles Clippers owner for life. It was not the fact that Silver came out in a press conference and clearly stated he will do whatever is in his power to force Sterling to sell the team.

The most shocking thing wasn't the reported boycott being planned by NBA players if Silver and the league's brass didn't come down hard enough on Sterling, nor was it that the Clippers managed to not only play, but win, a crucial game on Tuesday night amid one of the biggest distractions in NBA playoff history.

All of that might be shocking, but it pales in comparison to the realization that an incredible amount of Americans don't understand the concept of free speech.

Take a tacit look around the Internet for "Donald Sterling free speech" if you don't believe me. The results are…interesting.

Let us clear up a few things about free speech before we move on to the issue of Sterling's specific speech and why it is a slippery slope for NBA owners.

Every American has, in his or her daily life, the right to free speech, afforded to the citizens of this country by our government as part of the Bill of Rights, which was ratified in December 1791. That includes the Clippers owner.

It's worth noting that the constitutional right to free speech was given to the people of our nation 71 years before Abraham Lincoln issued the Emancipation Proclamation. Yes, speech has been free in America nearly a generation longer than many of its people.

And, yes, Sterling was well within his rights when he made comments to his girlfriend about not wanting black people in his arena. It was not illegal for him to tell another person that, "we don't evaluate what's right and wrong, we live in a society. We live in a culture," as some kind of perverted justification for continuing to treat minorities the way he does.

The issue is not about free speech.

Mark J. Terrill/Associated Press

If I spend the next three paragraphs talking about my editor, boss or even another writer for the company, explaining to the reader how horrible that person is at his or her job and how I cannot believe I have to work with and/or for this person every day—totally not the case, by the way—it is within my rights as a citizen to say those things. I have freedom of speech.

That freedom, however, does not guarantee me a job. Even if I posted those thoughts on Twitter or Facebook—hell, even if I had them in a conversation with another writer who taped it and sent it to the party I was disparaging—I would still be within my rights as a citizen to say those things. That does not mean the company I work for has to keep me around.

The NBA does not have to keep Donald Sterling around.

Some people really want to make this about the Constitution? Fine; let's do that. But get your constitutions straight.

This is not about Amendment I to the United States Constitution. This is about Article 13 of the NBA Constitution and By-Laws, released publicly by the league on Tuesday.

Article 13 (page 26 if you are following along at home) states that the interest of any owner may be terminated "by a vote of three fourths (3/4) of the Board of Governors" if that person falls guilty of one of 10 specific violations.

Herein lies the slippery slope.

LOS ANGELES, CA -  APRIL 29:   Susan Wright holds a sign protesting racist comments made by L.A. Clippers owner Donald Sterling outside Staples Center before a playoff game on April 29, 2014 in Los Angeles, California. Clippers owner Donald Sterling was b
Jonathan Alcorn/Getty Images

None of the 10 listed reasons for a vote of termination say anything remotely close to "disparages black people to his girlfriend" or "says mean things about Magic Johnson that gets leaked to TMZ" or really any of the reasons why the NBA is where it is with Sterling right now.

The closest anything specifically comes to linking to this situation is in part (a) of Article 13, which states an owner may not "Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association."

This is about to get super technical for a second. Part (a) of Article 13 can, and in this case does, refer specifically to Article 35A(d)—on page 47—that reads:

(d) The Commissioner shall have the power to suspend for a definite or indefinite period…any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association.

As Silver said in his press conference on Tuesday, it no longer matters that Sterling's comments were made in private, nor does it matter for the NBA's purposes how they became public and if they were done so with or without Sterling's consent.

The only thing that matters is that they are out and are without question prejudicial and detrimental to the Association.

If people want to take issue with a constitution, that's the issue. That's the slippery slope.

Apr 26, 2014; Dallas, TX, USA; Dallas Mavericks owner Mark Cuban reacts during the game against the San Antonio Spurs in game three of the first round of the 2014 NBA Playoffs at American Airlines Center. Dallas won 109-108. Mandatory Credit: Kevin Jairaj

It's the issue Dallas Mavericks owner Mark Cuban brought up in his remarks denouncing Sterling's comments earlier this week, while falling short of calling for his ouster. First, from the Los Angeles Times:

In this country, people are allowed to be morons. They're allowed to be stupid. They're allowed to think idiotic thoughts ...

Within an organization like the NBA, we try to do what's in the best interest of the league and that's why we have a commissioner and a constitution and I think Adam [Silver] will be smart and deal with Donald with the full extent available.

See, Cuban understands the difference between constitutions. And while those comments—made the day before Silver put the hammer down on Sterling by banning him for life—fall in line with whatever the NBA commissioner was going to decide, Cuban was more measured when asked what he, specifically, would do to Sterling. From The Associated Press (via the New York Post):

What Donald said was wrong. It was abhorrent. There’s no place for racism in the NBA, any business I’m associated with. But at the same time, that’s a decision I make. I think you’ve got to be very, very careful when you start making blanket statements about what people say and think, as opposed to what they do. It’s a very, very slippery slope.

It's ironic, in some ways, that Sterling will be booted from the NBA ownership fraternity for something he said and not something he did, when many of the things he has done since owning the Clippers have been far worse in terms of treatment of minorities and general awfulness.

The slippery slope begins when determining how and when this became an issue for the NBA. What makes this Sterling incident different than any before it?

Apr 29, 2014; Los Angeles, CA, USA; Demonstrators hold up signs in front of Staples Center demanding the sale of the Los Angeles Clippers prior to game five of the first round of the 2014 NBA Playoffs. The NBA handed down a lifetime ban on Clippers owner

This easily became an NBA issue when Sterling said he didn't want black people in his arena, but if that entire conversation took place and Sterling told his girlfriend not to bring black people to his movie theaters, or take photos with Jamie Foxx or Denzel Washington instead of Magic Johnson, we may be as upset, but could the NBA have done what Silver did on Tuesday?

When Sterling made it about the NBA, the owners had their out. What about next time? How slippery, exactly, is the slope?

While Silver said he did not poll all the owners before making the decision to force Sterling to sell the Clippers, he assured the assembled media on Tuesday that he will have the votes.

It will be interesting to see how many votes Silver gets. How slippery is the slope for some of the more outspoken owners in the NBA?

If a private conversation like the one that led to Sterling's undoing got leaked to TMZ, who knows what past conversations can (will?) get out about any of the members of the other 29 NBA ownership groups?

When Cuban made the slippery slope comment, he—and any other NBA owner with similar concerns this week—was not thinking about Sterling. He was thinking about himself.

NEW YORK - APRIL 29: NBA Commissioner Adam Silver speaks to the media regarding the investigation involving Los Angeles Clippers owner Donald Sterling on April 29, 2014 at the New York Hilton Midtown in New York City. NOTE TO USER: User expressly acknowle
David Dow/Getty Images

If it's this easy to get Sterling out of the NBA, what does TMZ, Deadspin or any number of gossip sites have in store for him?

If Cuban said something disparaging about minorities, women or one-eyed, purple people eaters at any point in the last 20 years, how long before that tape gets unearthed and posted online? Will he be next to go?

That's the slippery slope. That is not, however, an issue of free speech.

So it's OK to have issues with the reaction to the way the NBA dealt with Sterling. Just remember, if you have a problem with the constitution, make sure you're talking about the right constitution.


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