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Stop the Hand-Wringing Over Donald Sterling’s “Privacy”

by Nathan Siegel -

Since the Donald Sterling tape was first posted by TMZ.com, two main storylines have emerged.

The first, and by far the most significant, focuses on outrage over his racist remarks and his subsequent punishment by NBA Commissioner Adam Silver.

But another, while not condoning Sterling’s bigotry, laments the invasion of privacy Sterling is said to have suffered if his personal conversation with Vivian Stiviano was surreptitiously (and hence in California illegally) recorded. Some have even called for new, more restrictive laws protecting personal privacy.

We do not yet know enough about the facts to determine whether the conversation was illegally recorded under California’s recording laws. But if it turns out that it was unlawful, few on the pro-privacy side of the Sterling debate have paused to consider this fundamental question: How exactly was Sterling’s “privacy” supposedly invaded by the recording?

In my view, whether the recording was, or should be, illegal is not primarily a privacy issue. If Sterling’s privacy was invaded, it was because someone leaked the substance of what he may have understood to be a private conversation. But as a general matter, there is no law that would prohibit a spouse, paramour, friend, family member, or anyone else from disclosing what someone else said in a personal conversation – and certainly none that would bar someone from exposing an intimate acquaintance as a racist. Thus, no law would have prevented Ms. Stiviano, or anyone else who may have been present, from going to the press or to NBA executives and describing exactly what Sterling said.

Of course, people might well have been skeptical of Stiviano’s credibility if it were just her word against Sterling’s – and many news organizations might have been reluctant to report the story. And even if it had been reported, psychologically that kind of hearsay accusation often has less impact because it is hard to verify and it feels less immediate. As C.J. Paul aptly put it in a recent ESPN.com interview, “it's one thing to hear stories [about Sterling], and it's another thing to hear them.”

So taking the extra step and recording the conversation is not so much about privacy, it’s about proof. To be sure, there can be circumstances where it feels more invasive to be recorded than to be betrayed by words alone. But is that enough to make recording a crime?

What often seems lost in the Sterling debate over “privacy” is that is by far the majority answer to that question is “no.” Under both federal law and the laws of 38 states, the recording could not invade Sterling’s privacy because any person who participates in a conversation may record it.

What is illegal in most states (and under federal law) is “wiretapping” in the classic sense, where a conversation is surreptitiously recorded by a device that neither person in the conversation is aware of. And even that is only illegal if the nature of the conversation was one in which both participants had a reasonable expectation of privacy. That “wiretapping” scenario clearly is much more invasive of privacy.

But a dozen states, including California, take a different view. They would allow Stiviano to describe every awful slur Sterling may ever have uttered in her presence, but declare it a crime for her to prove what he said by taping him without his consent. And the Sterling story is a perfect example of how those laws actually risk producing some rather anti-social results.

If (and again, we do not yet know) the conversation was recorded without Sterling’s consent, then California’s illegal recording statute would also give Sterling the right to sue whoever recorded it. Specifically, under Cal. Penal Code. § 637.2, Sterling could sue the offending person for the greater of $5,000, or “three times the amount of actual damages, if any suffered by the plaintiff.”

Usually in civil tort law, “actual damages” means any damages that were reasonably foreseeable as a result of the illegal conduct. Presumably, Sterling would claim that his damages include the enormous hit to his personal and business reputation he has experienced, as well as any emotional and physical distress he may have suffered.

In other words, Sterling would claim that Stiviano, or whoever may have recorded it, owes vast sums of money because people learned he was a racist. Yet surely there is something perverse about that legal logic, because the worse his misdeeds, the higher Sterling’s damages would be. For example, if the conversations had involved confession to some awful crime like sexual abuse, he would be entitled to even more money.

Several important cases have rejected that logic, most importantly the landmark Food Lion v. ABC case from the late 1990s. Following an ABC News hidden-camera exposé of food-handling practices, the supermarket chain sued and demanded hundreds of millions of dollars in compensation because customers stopped buying food. The United States Court of Appeals for the Fourth Circuit rejected the theory, holding that even if ABC had violated some law in getting into position to make the tapes, under the First Amendment, Food Lion could not recover its lost sales without proving the news story was false and broadcast with actual malice.

That ruling is surely correct, and for the most part it has been followed, including in a California case involving a physician who was recorded by a local news station allegedly prescribing illegal narcotics (though it did permit him to recover the $5,000 automatic penalty). But there remain a few examples of courts that have awarded questionable damages. For example, after another television story exposed how an outfit offering telephone “psychic” services in California was taking advantage of its low-income customers, one of the “psychics” who was recorded in the story sued and recovered $600,000.

One would certainly hope that common sense would prevail and that if there is any lawsuit, no judge or jury would reward Sterling for being exposed as a racist. But the Sterling controversy illustrates why it is bad policy to have a legal regime that leaves Stiviano free to verbally expose Sterling for who he is, but in theory flips the tables entirely if that charge is substantiated by someone who made a surreptitious recording.

And at a minimum, the Sterling flap hardly justifies even more restrictive recording laws. Rather, the Sterling case shows why Congress and more than three-quarters of state legislatures got it right when they decided to leave judgments about this kind of dispute to the court of public opinion, not courts of law.

Nathan Siegel is a partner at Levine Sullivan Koch & Schulz, LLP, where he has represented multiple news organizations in lawsuits concerning surreptitious recording.

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