Benjamin, Aaronson, Edinger & Patanzo, P.A.

Sterling Examples of Public Speech

    In the last month the American people have been treated to such unfettered speech and
expression such as the recorded conversation of Donald Sterling; the unsolicited comments
by a Dolphin defensive back upon seeing Michael Sam kiss his male lover after being drafted
by the St. Louis Rams; and Michael Pouncey tweeting he can’t wait to see what gifts the new
rookie offensive lineman will bring them, just months after the investigation of the Dolphin’s
locker room and the hazing within.  On all of these comments, we have been contacted by
people who have expressed “doesn’t the First Amendment protect these people and don’t
they have the right to say what they said?”.  The answer is, yes and no.  

    As to the First Amendment protecting the rights of Sterling, the Dolphins defensive
back and Michael Pouncey to make these statements, the answer is no.  The First Amendment
to the United States Constitution protects speech from governmental interference.  Nothing
in the First Amendment protects citizens from repercussion for speech that they make when
that repercussion is not related to governmental action.  In essence, the government cannot
punish Donald Sterling or the others for making such speech, but that does not prevent
the NBA or the NFL or the individual teams within, such as the Dolphins, from punishing
that speech.  The reason for this is quite simple.  People have the right to contract away their rights and freedoms.  In the case of both Donald Sterling and the NFL players, they have
signed agreements with their league and with their teams precluding them from making any
statements that are either detrimental to the league or to the team.  What is detrimental
obviously is in the eyes of the beholder and also subject to the political correctness of the
    For example, we would venture to say that just 20 years ago, comments made about
Michael Sam kissing his male companion not only would have been acceptable, but would
have been championed by the majority of the citizens of the United States.  Even further, 20
years ago there would not have been a camera there to capture Michael Sam kissing his male
companion as by and large the airwaves were not ready to see such a sight.  In that same vein,
Donald Sterling’s comments about blacks and his not wanting his girlfriend to be seen with
them, would have been accepted as fact 60 years ago, and certainly would not have caused
an uproar even 30 years ago.

    The comment made by Michael Pouncey, the center for the Dolphins, even a few years
ago, would have been accepted as “boys will be boys” or that’s the rights of passage to play
in the NFL.  However, after the Jonathan Martin investigation involving Richie Incognito
and others, comments like that are now in appropriate and insensitive.  In essence, what we
feel is acceptable as a society is a moving target that changes with the times and certainly
with the circumstances.  

    Back to the concept of the First Amendment and Freedom of Speech, Press and
Expression, again, unless there is governmental action, there can be no violation of the First
Amendment.  However, that is not to say that if there is governmental action, there is a
violation of the First Amendment.  Even when the government is involved, one can contract
away in various forms, their First Amendment rights.  The best example of that are court-
ratified agreements where parties to a settlement agree that the terms should be kept
confidential.  Obviously, the government is involved, as the Court is ratifying it.  Yet, those agreements are enforceable by the Courts as both parties have entered into that agreement willingly.

    Defense contractors and people with jobs that involve special classification from the
government also contract away their First Amendment rights.  Obviously, if you are dealing
with a defense contractor, they deal with the Department of Defense.  Other people have top
secret clearance for other departments in the government.  All of them sign agreements
waiving their right to be able to speak freely on the matters that they are involved with. 
There is government action involved, yet a person has willingly given up that First
Amendment right in order to assure their employment or the contract.

    In the private sector, even if one does not contract away their right to speech, the
marketplace itself can do the same.  Comments made by movie stars, television stars and
other prominent people throughout the ages have caused them to lose favor with the adoring
public or their sponsors.  They have exercised their right to speak but with that speech came
repercussions and certainly the First Amendment does not stop those repercussions from

    Lost in all of this, is what has happened to our right to privacy?  More importantly,
what has happened to our concept of privacy?  The right to privacy is not spelled out in the
United States Constitution, although it is spelled out in many State Constitutions.  Yet the
Supreme Court has recognized through several of the amendments to the Constitution that
a right to privacy does exist.  Again, this right to privacy only extends to governmental
interference.  Therefore, Mr. Sterling’s right to privacy as guaranteed by the United States
Constitution was not violated by V. Stiviano.

    On the other hand, no matter how despicable Donald Sterling’s comments were, it was
obvious that they were intended to made between he and his lover?/girlfriend?.  They were
not made for public consumption and they were not made so that the world could hear. 
Rather, they were made to somebody that he felt intimate enough with that he could bare his
soul regardless of how repugnant that soul is.

    How many of us would want, let alone be able to withstand, the scrutiny of the masses
if they heard everything that we said in private to people that we believed were our
confidants and people that we believed that we could trust?  How many of us would actually
look like the people or the person that we pretend to be when anything that we have ever said
is for the world to hear?  We, as people, are not perfect.  We say things in the fit of anger or rage that we regret minutes later.  We use hyperbole in situations that we would not use in
public.  We joke, we tease, and we remain unguarded with certain people.  These people may
understand what we mean and how we say it.  Yet, those who do not know us and who do
not understand us can never get the true interpretation of what we mean or what we feel.

    In this light, Donald Sterling was a victim.  Certainly he is not a sympathetic victim
and we certainly do not ask anyone to give him sympathy.  But like Donald Sterling, with all
the technology that surrounds us; with all the gadgets and devices; even if it is not the United States Government that is taking away our right to privacy, it is our society that is taking away our privacy.

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