Journal of Information & Privacy Law

Wait, Private Conversations Aren’t Always Private?! A Look at the Donald Sterling Scandal

By Adam Florek, 2014-2015 Editor-in-Chief on Tuesday, May 6th, 2014
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For the past few weeks, it has been impossible to escape the scandal surrounding the Los Angeles Clippers and the team’s owner, Donald Sterling.  After Sterling’s racially charged remarks came to light, the NBA responded by levying a lifetime ban, $2.5 million fine, and threatened to force a sale of the team.  While these comments have been condemned far and wide there has been almost no discussion as to how these private remarks made it into the public sphere.

It is unclear when the remarks were made but it does seem settled that the remarks were made in the home of Sterling’s girlfriend in what appears to have been a private conversation.  So the question we are forced to consider is should Donald Sterling forfeit his right to privacy because his viewpoint is unpopular?

The test for privacy in the United States is whether there is both an objective and subjective expectation of privacy in any given setting. While I will not hazard a guess as to what Sterling expected, objectively private conversations are expected to remain private.  If the League attempts to force a sale and Sterling contests, the courts will inevitable be asked to consider his privacy rights.

Though the recordings may not be admissible, the results of his words are inescapable. The NBA has decided to take action to penalize someone for statements made in a private setting.  If the courts choose to allow an action to move forward it will result in a significant blow to individual privacy rights.  As Mark Cuban pointed out, it seems un-American to be permitted to deprive someone of his property over the comments made in the privacy of one’s home during a private conversation.

I can only hope that the courts will give the appropriate consideration to the potential repercussions of allowing a man to be stripped of his property as a result of the violation of his privacy.

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