Thursday, May 01, 2014

The taping and publication of NBA Clippers owner's offensive conversation seems itself to be illegal and wrong


Marc J. Randazza, a First Amendment attorney based in Las Vegas (site of the Righthaven mess) has made some remarks about the Donald Sterling and NBA matter, more about how Sterling’s views came to light. The opinion piece on CNN is “What happened to Sterling was morally wrong”, link here

It appears that girlfriend Vanessa Stiviano set him up (Donald Trump’s assessment on CBS, here. . There are reports that, like Richard Nixon, he liked to record his conversations.  But there are also stories, like from Smerconish last night on CNN, that a third party “enabler” (an odd word, reminding me of a notorious law in Germany in 1933) provided the mechanism to record and distribute the conversation. There are legitimate questions as to whether the recording was illegal under California law if done without consent, or whether republication could have been illegal; perhaps not if taping had been his regular "Nixonian" practice. 
     
Randazza makes a comparison of the incident to the “revenge porn” problem, where no one can be sure that an intimate moment in a quasi-public place won’t get photographed surreptitiously and wind up going viral.  I’m not sure the analogy works, but it strikes me that almost any private conversation in which one expresses unacceptable views could wind up getting circulated. Randazza also points out that "private surveillance" may have much bigger implications that that from the NSA.  Even in public places, personal photography (and the possibility of later uploading) is raising real ethical questions, as has been pointed out here before, 
   
Back in the 1980s, when living in a garden apartment in Dallas, I met a medical resident and became casually friendly, one time going to a Texas Rangers baseball game in the old Arlington stadium.  He sometimes expressed rather strong attitudes about non-white people.  At a holiday dinner some years ago with my mother, someone expressed the idea that integration had jeopardized society and made life riskier for white people.  I was rather shocked to hear it, although I get a certain point.  But I don’t think a comment like that should have been taped and rebroadcast, at least with the person identified. 
  
Frankly, I grew up in a culture where some of this thinking was more “acceptable.”  Even my own father one time, back in the early 50s, quote a Bible voice about “fixing the boundaries thereof”.  And then, my mind shifts to the summer of 2005, where, at an assembly at a (Virginia) high school opening a summer session where I would work as a sub, the principal warned everyone that “times have changed”.
  
Sterling’s comments, however shocking in tone, reminded me of another problem.  People of his generation (and my parents’) believed in living double lives.  They thought you could “love someone privately” but shun or at least avoid them publicly, and that you behaved publicly in a different matter because “what other people think” does matter.  I guess it was Ayn Rand, in “The Fountainhead”, who argued that the opinions of others shouldn’t matter too much.  Sterling, ironically, found out that what people thought of his supposedly “private” comments really does matter.
  
Once you have some success and public visibility, people will judge your actions.  Late last Friday night I was standing in a bar, having finished my one beer and put the bottle down, watching the “action”.  I was interested in what I could observe.  Two women approached me, and asked if I wanted to dance.  I said “not now.”  They challenged me with something like “really, you’re kidding, why not”.  That was odd.  I do have my own attitudes about what or who I find “attractive”.  But once I’m out in public (the Internet), it seems that people will challenge what that is based on and make an issue of it.  

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