“Why can't this guy have his private, bigoted conversation with his girlfriend?” Marc Randazza tells TheWrap
Donald Sterling is a victim. The Los Angeles Clippers owner is also a “really rotten guy.” The two are not mutually exclusive.
In a conversation with TheWrap, Las Vegas First Amendment attorney Marc J. Randazza campaigned neither for Sterling or the First Amendment, but for a world where some personal privacy still exists. But Randazza said the First Amendment is a total non-issue in this instance, regardless of what the less informed are talking about.
“There is no First Amendment violation here,” Randazza said. “The NBA can throw him out — as long as it's in their by-laws — for anything he says.”
The actual law in question is one of consent. California is a two-party consent state, meaning that to record someone, you need to have permission from both sides.
“If she didn't actually have his knowledge or permission, it is a criminal violation as well as a civil violation,” Randazza said.
V. Stiviano — identified as Sterling's girlfriend and the other voice on the infamous recordings — claimed Wednesday that she was hired as an archivist for Sterling, and thus had permission and instruction to record conversations. If that's true, then she also had the right to give the recordings away, though she has not publicly accepted responsibility for the leak of the tapes.
If the notoriously litigious Sterling takes this to court, he would have the burden of proof.
In a civil case, it would come down to preponderance of evidence. “If a jury listens to that recording, they're going to say that there's no way this guy knew he was being recorded,” Randazza said.
Should it come to that, Sterling could be entitled to a minimum of $5,000 or his actual damages, whichever is more.
Technically, should Sterling be forced to sell the Clippers and not receive fair market value, or should he incur any other provable damages, the still-current team owner would be entitled to that settlement if he sued and won. This, of course, does not guarantee he'd collect.
Legal stuff aside, Randazza is upset by the moral implications and believes that John Q. Public should be too. Calling the recordings a “sign of a scarier world than I grew up in,” Randazza compared Sterling's predicament to revenge porn cases, which he regularly argues against for plaintiffs.
“Here was somebody doing something that they thought was private and they trusted the other person with them to keep it private,” he explained, drawing parallels between the two. “And it didn't happen, and there are serious consequences for that.”
“You can look at that poor girl who might wind up on a revenge porn site and say, ‘Well, you shouldn't have taken naked pictures of yourself,'” Randazza added. “Well why the hell not? I want to live in a world where there's more naked pictures of girls and girls are happy to share them with us. Why can't this guy have his private, bigoted conversation with his girlfriend?”
The privacy issue is the one we should all be screaming about, Randazza said. “Is eradicating anybody with the unorthodox thought of racism worth selling out our universal privacy? I don't think it is.”
Randazza believes some good could come from this situation if more people become outraged about the bigger issue.
“Maybe us all getting together as citizens and saying, ‘You know what? Fuck this,'” Randazza said. “Did we really defeat the totalitarian Stalinist states in Eastern Europe just so we could have our girlfriends and our kids’ friends and the person I'm talking to at the bar late at night to take the place of the secret police, and make it that there's no place I can be private, no place I can be alone, no place that I can try out new ideas.”
So what would Randazza advise Sterling do at this point if the disgraced businessman were his client? Sell the team and “jet off to whore island.”
Crystal Rockwood, crisis manager and president of Rockwood Communications Counsel, believes that Sterling should stick around to fix this thing. Although the elderly team owner has already missed out on the opportunity to nip it in the bud.
Rockwood preaches the four “F's” to her clients: be First, be Fast, be Full and do not let it Fester. So far, Sterling would get his own “F” in all of those categories.
“Look how much harder it's going to be (now) for him to regain credibility,” Rockwood told TheWrap.
But she still believes that the maligned businessman can save face and his longterm reputation.
“We're a very forgiving group … but there has to be absolute sincerity and authenticity behind it,” Rockwood said. ”He can't have made that much money that he's completely removed from how much he's offended people.”
Rockwood sees even the very one-sided court of public opinion as an opportunity for Sterling. “The scrutiny is so high on him right now — if he chooses — he has the world waiting to hear from him right now,” she said, concluding: ”At this point, it's a matter of legacy.”
For that to be saved, Donald Sterling had better come out of the woodwork and get to the healing work.