As if we haven’t had enough news lately about a sexist, overblown, billionaire named Donald, along comes Donald Sterling back into the news. Sterling, you may recall, is the 80 year old disgraced former owner of the Los Angeles Clippers basketball team. He went from “owner” to “former owner” last year after a tape of him scolding his girlfriend V. Stiviano about appearing in public with “black people” became public. The controversy over the racist statements he made in the tapes eventually resulted in his being fined $2.5 Million and being banned by the NBA, and forced to sell the team for $2 Billion (which resulted in another dispute and divorce action by his wife).
So apparently Stiviano provided the tapes to TMZ who published them for all to hear. The issue is that California is one of the few states in the US that requires all parties to a conversation to consent to its recording. Therefore Stiviano broke the law when she recorded the Donald II without his knowledge and consent. n the docs, Sterling accuses TMZ of publishing the tape in violation of his privacy rights — and says, as a result, he’s been damaged “on a scale of unparalleled and unprecedented magnitude.” He also says Stiviano and/or TMZ doctored the contents of the recording. While the case against Stiviano has merit, the one against TMZ is dead on arrival.
Unless they directly participated in the illegal recording (highly unlikely) TMZ cannot face liability for publishing the recordings under US law. In 2001, the US Supreme Court declared in the case of Bartnicki v. Vopper that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” In Bartnicki someone intercepted a cell phone call between two school union officials planning a contentious strike. The person then gave the tape of the call to an anti-union radio talk show host who played it on his broadcast; other stations and newspapers then re-broadcast or published the taped conversation. The Court dismissed the case since there was no proof the host participated in the illegal recording of the call.
In so doing, the Court relied on New York Times v. United States which involved the publication of The Pentagon Papers, a stolen Defense Department study about the Vietnam War.
So here, the only real issue is whether the conversation was of a matter of public concern. Sterling by virtue of his ownership of the Clippers is a public figure. His anti-Black comments are a matter of public concern especially since he is an owner of a team that relies primarily on Black athletes. So I think this case should be fairly easy for TMZ to dispose of. In fact, TMZ should make a motion for dismissal and seek fees under California’s very strict anti-SLAPP laws. A SLAPP lawsuit is a Strategic Lawsuit Against Public Participation. By definition, a SLAPP lawsuit is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Anti-SLAPP laws allow defendants in SLAPP lawsuits to get costs and legal fees when the case is dismissed. This seems like a perfect application of the anti-SLAPP law.
Of course TMZ may not want to dismiss it right away since Sterling is very likely to provide excellent material in any deposition he may have to give in the case. Techdirt.com published a small excerpt from a Sterling deposition in a sexual harassment suit brought against him. It has to be tempting for TMZ to keep the case alive until they can secure such great responses as this one: