Speech and the Spotlight: A Question about Mr. Sterling and Free Speech

In looking for an opportune moment to get back into blogging, a conversation with a non-lawyer friend about the recent controversy surrounding the NBA and Los Angeles Clippers’ owner Donald Sterling’s alleged racist remarks provided an interesting topic of discussion.

I was recently invited into a conversation for input about freedom of speech rights for high-profile individuals being disciplined by sports and entertainment organizations for offensive comments made publicly and privately. The First Amendment restricts the government from censoring expression due to content, message, and/or idea. Of course exclusions apply to protect and promote public safety, but the First Amendment does not come into play in Mr. Sterling’s situation.

The First Amendment applies to the government, not private actors – in this case the NBA. States can grant broader rights to citizens that extend to private actors, but this is generally limited to private property that is open to the public.

The NBA, a private actor, is able to create regulations and sanctions to combat speech that is detrimental to the organization.

Other sports and entertainment organizations have taken steps to prevent any seemingly detrimental discriminatory practices. For example, the NFL implemented the Rooney Rule, named after Pittsburgh Steelers’ owner and the league’s diversity committee chair, Don Rooney.

Under the Rooney Rule, teams must interview at least one minority candidate for head coach positions, otherwise the team must pay a fine. The NFL created the Rooney Rule to address the lack of diversity among head coaches and senior staff. The rule allows teams to hire their choice candidate but provides qualified, diverse candidates the opportunity to interview for senior level positions.

For more information about the NBA/Sterling situation, read the NBA’s official press release.