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Sterling's racist tirade and NBA ban is not a First Amendment issue

Not really a First Amendment thing . . .
Not really a First Amendment thing . . .

When will people learn? Or, more accurately, when will people educate themselves? Or, even more accurately, when will people stop making public fools of themselves? Haven't we had our fill of that whole "I'm a fool and proud of it" with Sarah Palin? Do social media users have to embrace it too?

Here's the back story: Clippers owner Donald Sterling is an old rich white dude who went on an over the top racist tirade, was recorded doing it, and was appropriately disciplined by NBA Commissioner Adam Silver with a $2.5 million fine and a lifetime ban from the NBA. Sterling will go the way of Glenn Beck and Rush Limbaugh and Dr. Laura and Paula Deen and others whose careers and public identities were negatively affected by their "isms." It's garden variety stuff here - someone does something stupid, somebody busts him or her, social media erupts, the public outcry is deafening, sponsors pull out, and the offender is often left dangling over the edge of a cliff.

But here's where things get a little, well, stupid, in social media-land. This is a simple concept, and those who want to scream and rend garments and gnash teeth over the injustice of Donald Sterling's fate would be well served to learn it - so here it is, in terms a 5-year-old could understand: The first ten amendments to the Constitution - known as the Bill of Rights - includes the First Amendment, which is generally regarded as the right to freedom of speech and religion, among other things. And the First Amendment - the one a groundswell of, well, very dumb people, are invoking in regard to Clippers owner Donald Sterling's racist rant and subsequent lifetime ban from the NBA - is this: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment is about the government being unable to interfere with our freedom of speech and religious freedom and other rights we Americans have. The First Amendment has zip to do with protecting people from their own idiocy. The First Amendment says zilch about protecting people from the consequences - public, professional or otherwise - of their own idiocy. The First Amendment is completely silent on how private companies and private institutions and non-government'y types should respond to people like Donald Sterling. The First Amendment doesn't protect employees from being fired for bad behavior and doesn't protect socially unacceptable talk show hosts or sports teams from being dumped by sponsors and doesn't protect entertainers or politicians or vice-presidential candidates from the social and professional consequences of saying and doing things that socially sophisticated people don't say or do.

In the simplest terms, the First Amendment was designed simply to keep the government from trying to shut us up.

As Marc Randazza, a First Amendment lawyer writing an opinion piece for CNN, noted, Sterling's First Amendment rights are "intact: "The First Amendment protects you from the government punishing you because of your speech. The NBA is a private club, and it can discipline Sterling all it wants."

Whether the person who taped Sterling without his consent or knowledge broke California law is something to hash out; whether the person who recorded him was morally in the right is something we can all decide. Other people may face consequences of this as well, and that's okay.

But facts are not fluid things: Donald Sterling's First Amendment rights were not violated.

As Attorney Randazza also noted in his piece, "The First Amendment does not insulate you from criticism. In fact, that's the First Amendment in action. That is how the marketplace of ideas works. We float our ideas in the marketplace, and we see which idea sells."

Sterling had a very bad idea and the marketplace didn't react very favorably. But his First Amendment rights - which, essentially, grant him the right to say whatever he wants and get caught on tape being a racist moron - remain eternally intact.

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