Wednesday, May 7, 2014

Sterling and the Shrinking Scope of the Purely “Private” Sphere

“These days, the only way you can have a private conversation is to talk to yourself.”

-- “Susan_Gale” (Board of Wisdom)

Last month, BSB covered the saga of Mozilla CEO Brandon Eich, who resigned after amid a torrent of criticism for his $1000 donation in support of California’s Proposition 8, a ballot measure that sought to ban same-sex marriage. At the time, there was considerable discussion about whether public pressure should be directed at an individual like Eich purely on account of his political beliefs.

More recently, a similar firestorm erupted in the National Basketball Association, as Donald Sterling, the octogenarian owner of the Los Angeles Clippers, was recorded making deeply racist comments. The recording was captured by one of Sterling’s associates, V. Stiviano, who later gave it to a third party for “safe keeping” only to have the contents leaked to TMZ.

Recent reports indicate that the recording was made with consent from both Sterling and Stiviano (California is a “all-party” (or “two party”) consent state, whereas New York is a “one-party” state requiring only one individual to have consented to a recording).

While some have hailed Stiviano as a “hero”, others have questioned whether the real story—aside from the vile commentary unleashed by Sterling—is the nature of private communication in modern life.

NBA great Kareem Abdul-Jabbar even went so far as to say, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”

ESPN columnist Jason Whitlock added:

If TMZ plans to make “pillow talk” public and the standard is set that “pillow talk” is actionable, it won't be long before a parade of athletes joins Sterling on Ignorance Island.

A right to privacy is at the very foundation of American freedoms. It's a core value. It's a mistake to undermine a core value because we don't like the way a billionaire exercises it. What happens when a disgruntled lover gives TMZ a tape of a millionaire athlete expressing a homophobic or anti-Semitic or anti-white perspective?

Lastly, Globe columnist Jeff Jacoby issued a cautionary warning, “[I]t isn’t only other people’s dirty laundry that the whole world can get a good look at. It is yours and mine, too. Once our privacy is gone, don’t count on getting it back.”

So what are we to make of this? At the outset, we need to define whether the decline in privacy is a problem in the first place. Presumably, we believe that a shrinking private sphere will lead to self-censorship and the decline in discourse that may at the time seem abhorrent but later becomes not only accepted, but embraced (countless ideas in history follow this trajectory, from Copernican heliocentrism to marriage equality).

At the same time, each of us as “public citizens” must be prepared to shoulder the consequences of our views. But which views? Perhaps those that we affirmatively choose to share with others. For instance, Brandon Eich contributed to a public campaign and was held to account in the marketplace. Donald Sterling did not make such an affirmative choice, though as most others have noted, given Sterling’s history of behavior, he garners little sympathy.

Beyond whether a communication was intended to be public or private, are there important lines to be drawn between politicians and public figures—who we expect to uphold a certain type of consistency across audiences—and private “everyday” Americans? The law already differentiates between these classes of persons in libel law, where public figures must prove “actual malice” to recover. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Of course, this only begs the question of who constitutes a public figure. It’s easy to say that a billionaire NBA owner is a public figure—but what of the small business owner on the corner or the superintendent of a small regional school district?

None of these questions are easy to answer, but the Sterling story should generate conversation about the nature of privacy in the modern age—an issue that we’ve done little to address, other than using technology to provide a quick fix (here’s looking at you, Snapchat).

Furthermore, it acts as a reminder that each of us is aware that people say things they don’t mean (we’ve all done it) and that attaching permanent pariah status on another individual for thoughts shared with intimates behind closed doors is often unfair and short-sighted. A society built on open dialogue and second (and third) chances cannot function if there is no safe space to discuss controversial subjects in a constructive manner (again, Sterling’s do not remotely fit this description, but other controversial comments do).


Now I better log off and put pen to physical paper. After all, privacy isn’t dead yet.

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