Thursday, May 29, 2014
More statutory interpretation from Donald Sterling
Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . . in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.
Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.
I admit that I have not been following this case "lawyer" closely, more just "sports fan" closely, but isn't there another layer of removal here? The owners are a kind of partnership, and they want to kick him out because he is damaging their brand and their league. Players are threatening to boycott Clippers games and advertisers are threatening to walk away. There is nothing in the state statute or the Constitution that forbids players and advertisers from disassociating themselves from Sterling. My sense is that players' and advertisers' *reaction* is the owners' primary reason for kicking Sterling out. (They have known about his views for years and haven't done anything.)
Therefore, the NBA doesn't need to prove that Sterling is a racist, or that the tape shows he's a racist. There may not even be a need to admit the tape into evidence. The only evidence could be press *about* the tape, and quotes from players and advertisers saying that they don't want anything to do with the LA NBA franchise as long as Sterling is at the helm. Since that would be the basis for the NBA's decision, doesn't that level of removal also get around the taping/privacy problem?
And yes, I realize this sort of reasoning is objectionable in many other contexts: "It's not that we don't like gay folks, it's just that our sponsors don't, so you can't be on the football team." But that's because anti-discrimination laws (and norms?) don't permit that sort of subterfuge. I don't think of privacy and First Amendment doctrine as working the same way in this context.
Posted by: David Ziff | May 29, 2014 5:13:52 PM
Sterling is setting up litigation--if/when he loses the NBA proceeding, he is going to make the same arguments as part of a breach-of-contract lawsuit. And that is the point that the NBA would raise Bartnicki.
Posted by: Howard Wasserman | May 29, 2014 11:30:14 AM
Bartnicki was my first thought as well. The NBA, after all, did not obtain the recording or otherwise do anything to encourage it (according to reports, at least). It appears the NBA first heard the comments the same way the rest of us did - through ESPN, TMZ, or some other media outlet. Thus, like Bartnicki, the potential defendant (assuming Sterling took action to prevent the NBA from using the recording) obtained the information lawfully, even if someone else did so unlawfully.
But the obvious difference is that Bartnicki was a damages suit, whereas Sterling would only be arguing that a private party cannot use the recording as evidence. It's hard to see how Sterling's claim would invoke First Amendment chilling effect concerns.
There seem to be valid arguments on both sides here. Allowing the evidence in would provide a pretty easy end-around the state statute and undercut its policy, but it seems silly that the NBA cannot use comments widely disseminated in the national media when it played zero role in revealing that information (unlike the defendant in Bartnicki, whose hands were not necessarily clean). I suppose it really comes down to what it means that the "evidence was obtained AS A RESULT of eavesdropping..." The NBA would likely argue that its receipt of the info was too attenuated (basically a proximate cause argument), and that seems like it's probably right.
Of course big picture, my guess is you are likely right that the state statute does not apply absent some case law or other compelling source that would extend "other proceeding" to a private contract dispute.
Posted by: Ben | May 29, 2014 10:44:41 AM