Our colleague Allen West has stirred the snake pit today. Writing on the Donald Sterling scandal, he makes these points:
Fox News host and commentator Greg Gutfeld applauded this moment because of the consensus outrage being displayed. But I believe this outrage misplaced, or more accurately, mis-prioritized. NBA Commissioner Adam Silver said Sterling’s behavior was “dangerous to the NBA.”
Where is the cultural, public outrage over a behind closed door comment such as referring to the State of Israel as an “apartheid state?” Probably most of America doesn’t know who said it or even what “aparteid” means.
Or how about the outrage that should have come when our own president leaned over to then-Russian President Medvedev sayng, “Tell Putin that after my reelection I will have more flexibility” and of course Medvedev said, “I will tell Vladimir.” And now we know what that “flexibility” has allowed.
And I don’t disagree. How ridiculous is our popular culture, that we go torches-and-pitchforks for days over the repulsive comments of a private citizen, made in private, and yet the actually damaging words and actions of our president get protection from his party and the media, and a shrug of the shoulders from the people?
West has some very valid points. We ought to question the recording of Sterling’s comments, especially considering that there was a lawsuit in progress against the recorder — brought by the recordee’s wife. There’s an issue of both law and societal character here. In terms of the latter, Josef Stalin could only wish to know all the stuff we know about each other’s private moments now. On balance, it’s not a positive trend.
That said, I think we all know it would hardly be a moral triumph for Mr. Sterling to have his ugly private speech protected by the law on secretly recording phone conversations. The rule of law is always desirable, just for itself. But at this point, the cat is out of the bag, and there’s no reversing the consequences for Sterling. From the law’s standpoint, there is only the possibility of punishing his erstwhile girlfriend. Worth the bother? I’ll let the relevant prosecutor decide.
Allen West is 100% correct that our priorities are really messed up in the matter of Sterling v. President. But on this whole issue, there is a point on which I may differ with him. West asks this:
The national outrage against Mr. Sterling has come from an act that could be illegal and inadmissible in a court of law. Nevertheless, the court of public opinion has tried and convicted Mr. Sterling of being a jerk.
But have we come to a point in America where being a jerk is grounds for confiscation of a private property?
There’s a valid sense in which this is a good question. But first we have to establish the most important factor of all, which is that no action of government has deprived Sterling of property. The action was taken by a private business association, the NBA.
There are two points to consider. One is the point I think West is making: that it is dangerous and wrong for society to agitate for punishing people for speech. He’s right. Mass waves of hysteria should never steamroll property holders. Period. It’s one of the purposes of our property laws, to protect owners against such non-accountable “takings.”
But there’s another extremely important point, and it’s one we would rue the day we disregarded, if we did the wrong thing here. As a private organization, the NBA does have a right to set rules that govern participation in its enterprises. It has a right to have a moral objection to Sterling’s behavior, and to expel him from the association.
This right of the NBA may or may not be tested in the coming days; I just saw on Fox that Sterling has now said he won’t sell the Clippers. The NBA may have to take him to court.
Don’t be too quick to wish for the NBA to lose this one. If we want religious or other special-interest organizations to have their moral rules protected by law — or even just their rules of preference — the NBA’s have to be protected too. Even when there’s a financial or property interest involved.
Should Jewish student groups be required to admit Muslim members who advocate sharia and the destruction of Israel? Should pro-life groups be required to accept pro-abortion members, and allow them to run for office within the groups? Must church-sponsored schools hire or retain employees whose beliefs or life choices violate the beliefs of the church?
The NBA has and should have the right to enforce rules that may mean, from time to time, that one of its owners suffers loss of property or interest. It can invoke the equal opportunity and non-discrimination laws of the United States in dealing with Sterling, but it shouldn’t. Those are laws that require demonstrating unequal results from policy. The NBA has the right to require better speech of Sterling. And it should have that right. Speech and leadership are a huge part of commercial success, as they are in any private group enterprise.
Allen West makes an important point about not railroading people — even disgusting people — and thinking of that as justice. But there’s a flip side to the proposition. There are things law can never do, and cultivating a truly respectful, positive, brand-worthy environment in the NBA is one of them. Law can’t work the magic that voluntary private associations work for pursuing exciting goals. Private associations have to have the rights that make them effective. Expelling Donald Sterling is one of those rights, and the NBA should have it.