Recording Donald Sterling’s Racist Comments: A Crime?

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A crime may have been committed when Donald Sterling implored V. Stiviano not to publicly associate with minorities—but not by the shamed Los Angeles Clippers owner. (The government can’t punish Sterling for that kind of speech, but the NBA can. (See An Actual Example of Free-Speech Infringement.))

Stiviano, a 31-year-old employed as Sterling’s “archivist” but rumored to be his mistress, apparently recorded the inflammatory conversation in September of last year. In it, Sterling utters several statements that, when stripped of social media references, appear to be from the segregation era:

“I’m just saying, in your lousy f—ing Instagrams, you don’t have to have yourself . . . walking with black people. Admire him, bring him here, feed him, f— him, I don’t care. You can do anything. But don’t put him on an Instagram for the world to have to see so they have to call me.”

A Crime to Record

 

In many states, it’s perfectly legal for someone to record a conversation without the other interlocutor’s consent. (See Can I legally record a conversation between myself and another person?) Roger Clemens, the allegedly steroidal baseball player, famously taped a phone conversation with his accuser without disclosing that he was doing so. Clemens and his lawyer then happily played the tape for the media, since the law in Texas and New York—where Clemens and the accuser were during the conversation—allowed for the recording.

But California, the situs of the discussion between Sterling and Stiviano, is different. There, it’s typically a crime to “eavesdrop upon” or “record” a confidential conversation with an “electronic amplifying or recording device” “without the consent of all parties.” (Cal. Penal Code § 632.) Under Penal Code section 632, a communication is confidential if the circumstances reasonably suggest that any party to it wants it to stay private. The crime of non-consensual recording is a wobbler, meaning that it can be treated as a misdemeanor or felony.

In a representation that doesn’t pass the smell test, Stiviano’s attorney claims that Sterling consented to the recording. If that’s true, then the Instagram star is in the clear. If it isn’t, she has almost certainly committed a crime, though prosecutors might not go after her for fear of bad publicity. And even if they did file charges, Stiviano probably wouldn’t do any jail time.

Kept out of Court?

 

There’s another angle to this kind of surreptitious recording: It isn’t admissible in court, other than to prove a violation of section 632. That means that no current or future California litigant would be able to use the conversation against Sterling. Even if relevant, it wouldn’t, for example, be admissible in the course of the pending lawsuit by Sterling’s wife against Stiviano. (Rochelle Sterling has sued Stiviano in an attempt to recoup over $2.5 million in gifts from her husband to his “girlfriend.”) Nor could it be used to prove Sterling’s racial bias in suits by victims of his reported slumlording.

All of this means that a lot hinges on whether Sterling had any idea that Stiviano was recording his fateful comments. His reputation may have already be sealed, but the legal consequences of this embarrassment remain to be seen.

 

Written By: Micah Schwartzbach