Tag Archives: speech

Legal Documents of the LA Clippers Forced Sale

The forced sale of the Los Angeles Clippers may be moot, but the legal issues surrounding the forced sale are interesting.

Donald Sterling made offensive racial comments during what appears to be a private conversation that was taped and then leaked to news outlets.  The league claimed in it’s summary of dismissal, Sterling “disparaged African-Americans and ‘minorities’; denigrated the contribution of NBA players; directed a female acquaintance not to associate publicly with African-Americans; admonished that acquaintance for posting pictures of herself with African-Americans on social media; directed that acquaintance not to bring African-Americans to Clippers games; and criticized African-Americans for not supporting their communities.”  A public uproar ensued.  NBA Commissioner Adam Silver then fined Sterling $2.5 million dollars and placed an indefinite ban on him doing anything relating to the Clippers.  It appears Donald Sterling gave power to his wife to sell the team.

This really does not deal with an issue in Arizona, but the Phoenix Suns are part of the NBA and I found the topic interesting.

The National Basketball Association is kind of an oligarchy.  There is not much competition and very few owners.  Outside of college basketball, where the players are not paid, the only real alternatives are the WNBA and the D-League both of which have strong affiliations with the NBA — it is not fair to call them competitors.  With thirty majority owners (one for each team), it is a pretty exclusive club.  The owners collective hire the Commissioner who enforces the rules.  Furthermore, each team has a stake in creating the rules via the NBA Board of Governors (explained in the NBA Constitution).

How does it operate?  Outside of lockouts and rule changes, it does not seem like there is a lot of information on its operations.  Since it is unlikely that I will ever have the privilege of owning a sports team, it interests me to see how things run from the inside.

The NBA is guided by it’s own Constitution and By-Laws, which were apparently made public after the taped Donald Sterling comments.  It is nice to be able to see the rules the NBA owners have chosen to live by.

Termination of Ownership

The NBA Constitution directly deals with the termination of ownership in Article 13.  Like reported in the media, Article 13 says the interest of an owner may terminated by a 3/4ths vote for one of the enumerated activities.

  • ” Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.”
  • Transfer or attempt to transfer an ownership interest in violation of Article 5.
  • Fail to pay dues or other debts.
  • “Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
  • Betting on games.
  • Allowing others to bet on games.
  • Fixing the score of a game — to allow others to bet on a game.
  • Disband the team during the season.
  • Intentionally fail to keep team from playing a game.
  • Intentionally lie on membership application.

— NBA Const. art. 13.

There is not a moral clause anywhere in there — after all, he is being charged with being immoral.   Offensive comments are not grounds for termination of ownership, nor are they illegal.  There really isn’t anything in the express language of the Constitution that Donald Sterling violated.

It is apparent the Commissioner exercised another section of the Constitution when it banned Donald Sterling.

The Commissioner shall have the power to suspend a Player, Coach, Member, Owner, or other person subject to the Commissioner’s jurisdiction for a definite or indefinite period and to impose such fines and other penalties as are authorized by Article 35, 35A…

— NBA Const. art. 24, sec. (h)(i).

Furthermore, Article 24, section (l) gives the Commissioner the power to impose fines.  The qualification to levy a fine is that there must not be a “fixed penalty” for the violation.  This section was most likely utilized in order to impose the fine upon Sterling.

NBA’s Arguments For Termination

The NBA in it’s Summary of Termination (see link below) argues that Sterling violated Article 13, sections (a), (c) and (d).

The league claims Sterling “willfully violated” 13(a) “when LAC destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement, as described above.”  Granted this is only the league’s summary, but the document does not state what was violated.  Section (a) is pretty clear the Constitution, By-Laws, or some other agreement needs to be violated.  Unfortunately, the Summary does not state a specific agreement that is violated.  Perhaps a potential violation could be found in Article 35A(c) of the league Constitution, “[a]ny person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.”  This is just a guess on what the NBA could argue for breach.

The second claim is 13(c) gives the league cause when an owner fails to pay debts to the league.  The league considers the $2.5 million dollar fine a debt to the league.  Since Sterling refuses to pay the fine, the league says that is grounds for terminating his ownership.  This seems like a fairly reasonable interpretation of the league’s constitutional language.

Lastly, and the point the league spends the most time on, is a violation of 13(d).  There seems to be a lot of overlap with this alleged violation and the one alleged in 13(a).  The league claims that 13(d) could be violated by, “[T]he taking or supporting of a position or action which may have a material adverse impact on the league or its teams.”  Again, just looking at the Constitution probably the closest clause for a violation would be Article 35A(c).

An option not mentioned in the Summary is the NBA may have used Article 17(a) without an express breach.  This allows the Constitution and By-Laws to be changed by a 3/4s vote.  If the owners employed enough solidarity, they could write-in any act or behavior to prohibit, and could have easily have created some sort of morality clause after the fact.  It is not clear if the owners utilized this provision or not, but it is a likely option.  This option was tossed around in the media, but it did not receive a lot of support because of the precedent it would set.  Theoretically the argument goes, since Sterling’s comments arose out of a private, taped conversation, then it open the doors for the owners to amend the NBA Constitution to prohibit any private behaviors they find objectionable in the future.  From the facts I have gathered, it is unclear if this option ultimately was used, however some gave it a lot of weight.

Sterling’s Response to NBA (out of court)

The response by Sterling is interesting because his arguments are a hybrid of criminal law and the NBA Constitution.

First, Sterling argues that the taped call is inadmissible.  It is against California law for taped calls to be permissible into court.  While Sterling acknowledges the NBA Board of governors does not follow strict rules of evidence (either under California or federal law), but he cites the NBA does have some standards for what evidence it will look at.

Then he turns his attention to alleged violation of the NBA’s Constitution.

A jealous rant to a lover never intended to be published cannot offend the NBA rules.

— Donald Sterling’s Answer To Charge, In the Matter of the Termination of the National Basketball Association Membership of LAC Basketball Club, Inc., 3 (May 27, 2014).

He argues that Article 13(a) is a stretch.  Since the clause has the word “willful” it means that Sterling had to intend the results of his comments.  Since his comments were made in private, it would be very difficult for the NBA to argue Sterling comments were made with the intention of causing the NBA harm.  If Sterling only made the offensive comments in private, it would be one thing.  However, Sterling has a history of offensive racially charged conduct, and the public interviews he made in his defense in the aftermath only seemed to reinforce what he said in private.

Similar logic is used to defend against the charge of violating 13(d).  He argues that since his conversation was in private he did not take a position that was meant to harm the NBA or its affiliates.  As indicated above, the topic of the conversation was not about the course of the NBA’s business, but it was an argument about Sterling’s apparent girlfriend hanging out with other men.


On Friday, Sterling filed suit against the NBA on May 29 for violation of constitutional rights, breach of contract, antitrust violations and more.  The suit is seeking $1 billion in damages.  Since the league makes it’s own policies, Sterling’s best chance for keeping his team may be fighting in federal court.


NBA Constitution and By-Laws

NBA Summary of Sterling Termination Charge

Donald Sterling’s Response to NBA Charge





Privacy and Justice Alito

Associate Supreme Court Justice Samuel Alito gave an in-depth interview to American Spectator magazine.  It is a wide ranging interview that encompasses both his personal life and judicial philosophy.

The Justice describes his judicial philosophy to the magazine.  “’I start out with originalism,’ he says. ‘I do think the Constitution means something and that that meaning does not change. Some of its provisions are broadly worded. Take the Fourth Amendment. We have to decide whether something is a reasonable search or seizure. That’s really all the text of the Constitution tells us. We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it.'”

I think I would consider myself a practical originalist.

I find this view interesting, to say the least.  There is so much how our country has changed since the adoption of the Constitution, I think I like this pragmatic approach.  To me at least, our forefather’s and their intentions play a critical role in interpreting the Constitution, but it cannot be the end-all, be-all of the analysis.  I think how society changes also needs to be taken into account.  I have never heard of the term ‘practical originalist’ before, so I am happy he gave it some context.

The interview also focused on technology.  There are several high profile cases this year including ABC v. Aero (transmitting public programming over the Internet to subscribers), and Riley v. California (cell phone search by police)One of the critiques of the courts is that they do not understand technology as well as other segments of society.

We need to own up to the fact that we are a lot older than a lot of the population. We don’t have the same level of experience with these things that a lot of people do.

It is refreshing to me when anyone is self-aware enough to admit his or her shortcomings — it is even more impressive when that person has the power that a Supreme Court Justice does.

It is a really interesting read.  I gained insight, understanding, and consequently respect for Justice Alito.  It is a good read.

Samuel Alito: A Civil Man

Search Engine Speech and Link Deletion

A ruling by the European Court of Justice may pave the way for users at least in Europe, and potentially in the United States, to remove entries from search engines.  Some are saying this is the new frontier of free speech.

Usually when I think of speech, I think of it coming from a human — or at the very least originating from a human somehow.  The internet is changing how speech is viewed, in particular how search engines create speech.

Google Link Deletion Case

In March 2010, Mario Costeja, a lawyer in Spain, was searched for by an internet user on Google on which links to two newspapers documented Mr Costeja’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts.  See Google v. Agencia Espanola de Proteccion de Datos (AEPD), C‑131/12 (CUIRA 2014) (links to full text of the opinion). Mr. Costeja first requested the newspaper remove the content.  Then he requested that Google remove links to the content, so that while the content would still be on the internet, it would be much more difficult to find without a search engine listing.

AEPD ruled the newspaper had a right to keep the content on the internet.  But it did not think Google had a right to link to the article because of privacy reasons.  The agency considered that that obligation may be owed directly by operators of search engines, without it being necessary to erase the data or information from the website where they appear.

Case of Search Engine Free Speech

There is some concern the Google case might have a ripple effect and impact free speech in the United States.  It is important to first understand why it is thought search engines create speech.

Google commissioned UCLA Law Professor Eugene Volokh in 2012 to write a white paper about search engines and the First Amendment.  In my opinion, his paper is the leading resource on how the First Amendment applies to search engines. Professor Volokh makes three arguments why search engines create protected speech.

There are over 100 billion searches a month … and we now update our index within seconds to ensure we show the freshest results. To make life easier, we’re increasingly able to provide direct answers to your questions. For example, ‘what’s the deepest lake in the world?’ (It’s Lake Baikal in Siberia at 1,741 meters) or, ‘when does my flight leave?’ or, ‘how many calories in a pancake?’

— Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

First, search engines are now programmed to give the user particularized about her search.  If a user searchers a movie, the search engine may show movie theaters and times that are near her.  Alternatively, if a user searches a famous person (celebrity, politician, etc.) the first result may be to a biographical database such as Wikipedia, IMDB, etc.  Volokh argues this is information the search engine prepared in anticipation of certain types of searches.

Second, search engines create short caption about the webpage.  It is standard practice that search engines along with name of website and link to it, provide a short description (usually less than 160 characters) summarizing the webpage’s content.  While website owners may supply their own captions, ultimately, it is the search engines themselves that have final discretion on what goes into the caption making it speech.

Thirdly, and most importantly to Professor Volokh, search engines compile results in a way that anticipated to be the most beneficial to the user.  This is the essence of a search engine — its rankings.  According to Professor Volokh, the rankings are what breed loyalty and keep users returning time after time.

Professor Volokh then compares the search engine speech to more traditional speech such as: guide books, directories, newspapers judgement on where to place stories and which stories to run daily, etc.  There are many instances in a more traditional sense where prioritizing information (that is created by a third party) is protected speech.

All of that speech by search engines is jeopardized if a user of the search engine decides to delete a link from the index. Then the index’s proprietary compilation is jeopardized and the caption is removed.  The ruling by the European Court of Justice allows potentially any user or non-user of a search engine to act as a censor over the search engine’s work product.  If users are allowed to unilaterally delete links it may fundamentally affect the search engine’s business.  Thus, the search engines may seek protection under the First Amendment.

Search Engine Optimization, Search Engines and the First Amendment

There is a big difference between a search engine and a traditional counterpart (like a newspaper selecting articles for the front page) — at least half of a search engine is mechanized!

Search engines use spiders (a computer program) to crawl the internet, which find new websites, and new content on existing websites.  A spider will follow the links on an individual webpage, that lead to another webpage and it’s links, until the spider crawls the entire search engine.  See Matt Cutts, How Search Works, https://www.youtube.com/watch?v=BNHR6IQJGZs (last visited May 16, 2014).  It is unclear to me at the time of this writing this blog post, how much protection purely mechanized speech would receive.

Where there is more human intervention in the search results is when a link is removed from the database.  See Google Removal Policies, https://support.google.com/websearch/answer/2744324 (last visited May 16, 2014).  Google’s removal policy is on a “case-by-case basis.”  To me, this implies that humans are involved in the analysis of which pages should be removed.  It would be very difficult for a program to not only take the particularized concerns into account, but also look at the concerns individually and make a judgement on the merits.  A removal from the search results can be because of a personal request, or because Google deems the content to spam (a violation of it’s quality guidelines).  The quality guidelines are constantly being updated to conform with the ever-evolving pattern and practices on the internet.  See Matt Cutts, Guest Blogging, http://www.mattcutts.com/blog/guest-blogging/ (last visited May 16, 2014) (noting that “guest blogging” is now considered a spammy practice).

Perhaps a better analogy would be library classification systems.  There are various library classification systems that are used to help users find the book they are search for with more ease.  Is the Dewey Decimal System speech?  Is the Library of Congress Classification speech?  Or the Scott-Polar classification system used at the National Snow and Ice Data Center Library speech? Search engine’s ranking system seem to be more of a classification system that allow searchers find the information they seek more easily, just like a library classification system.

It seems to me that the First Amendment would apply to the decision to the removal process because that is where the actual speech takes place.  If search engines mechanically add as much content as they can to their databases, there is no inherent value in gobs and gobs of information.  The value that Google, Bing, Yahoo, DuckDuckGo provide is in their curated results.  There is some speech in the pre-programmed algorithms that determine page rank.  Humans develop those algorithms based upon the views of the company.  However, I would argue that since that process is largely mechanized it is not clear how much protection the algorithms that determine the rankings deserve.


For example, when I searched “Arizona law firm,” Google’s index provides 21 million results.  This is a fairly specific search, a search term I could look up in a phone book, or perhaps another curated list. The amount webpages that Google returns for this search is mind boggling.  To put this in perspective the approximate population of the state of Arizona is 6.5 million people.  There are more than 3x as many results for Arizona law firms as there are people who reside in Arizona.

With the sheer number of results in Google’s database, how is it possible for a person or even a company to credibly know all of what is in its index?  Keep in mind that Google and other search engines offers global search results in virtually every written language.  I would assert through analytics companies are able to predict searcher’s preferences with varying degrees of success.  Software algorithms provide search engines the ability to discover meaningful patterns in data, which can later be used to determine user’s preferences.

Is it speech it really speech if a company is unaware it is making it?  I would argue that it sets a precarious precedent allowing full protections of the First Amendment for speech that a person or company is not even completely aware it is making.

Again, it is not the libraries classifications that are traditionally thought of as speech — it is which books libraries decide to remove, or keep that is a speech issue.  Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866 (1982) (noting the removal of books from a school library may implicate the First Amendment rights of students).

Two Different Types of Search Engine Speech

I would argue there are two different levels of protection that should be afforded to search engine speech.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

In a future blog post I will layout my reasoning why the removal and curation of the search engine index should receive heightened scrutiny.  On the other hand, the rankings, or mechanized speech should receive a lesser amount of scrutiny.



First Amendment Protections for Bloggers

As the internet evolves the rights and responsibilities of its users become more clearly defined.  Courts have found themselves in the position of having to apply the common law precedent to the Internet.  A recent case out of the Ninth Circuit Court of Appeals is helping to legally define the protections of bloggers on the Internet. Obsidian Fin. Grp., LLC  v. Cox, No. 12-35238, D.C. No. 3:11-cv-00057-HZ (9th. Cir. Jan. 17, 2014).

The facts are not as clear as I would have liked, so I will try my best to distill them.  Summit Accommodators voluntarily petititoned for Chapter 11 bankruptcy in late 2008. The defendant Kevin Padrick, a senior principal and co-founder of Obsidian was appointed as a bankruptcy trustee. Crystal Cox is a self-appointed real estate whistleblower.  Cox created and wrote content for blogs: http://www.obsidianfinancesucks.com and http://www.summit1031sucks.com.  Some of the claims Cox made about Padrick on the blog, he is: corrupt, committed tax fraud, and called him derogatory names.  Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011).  Obsidian Financial Group and Padrick sent Cox a cease and desist letter, but she continued anyway.

One observation the district court made was Cox did not try to attempt any neutrality.  With domain names like http://www.obsidianfinancesucks.com visitors should know that the blog will take a critical stance, “which expressly discloses its bias against bankruptcy courts, bankruptcy trustees.”  Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011) adhered to in part on reconsideration, 812 F. Supp. 2d 1220 (D. Or. 2011) aff’d, 12-35238, D.C. No 3:11-cv-00057-HZ (9th Cir. Jan. 17, 2014).  Many of the blog posts were not counted as libelous because they were based upon opinion rather than fact.  However, the district court found one blog post libelous in nature because it made “fairly specific allegations [that] a reasonable reader could understand . . .to imply a provable fact assertion.” Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1233 (D. Or. 2011) aff’d, 12-35238, 2014 WL 185376 (9th Cir. Jan. 17, 2014).

Cox then asserted that the First Amendment offered her protections from liability deriving from New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  First, she claimed that the subject matter was of public concern.  Second, both Padrick and Obsidian were public figures.  The judge rejected both of these arguments saying that neither Obsidian nor Padrick sought to be a public or limited public figure.  Instead, Cox created the controversy around them.

Both parties appealed.

The Ninth Circuit Court of Appeals reasoned that since the New York Times case, courts have not given any extra protection to journalists than they have anyone else. “[E]very other circuit to consider the issue has held that the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers. . . We agree with our sister circuits.” Obsidian Fin. Grp., LLC v. Cox, 12-35238, D.C. No. 3:11-cv-00057-HZ (9th. Cir. Jan. 17, 2014).

The Court went even further by saying that Padrick’s actions were a matter of public concern.  Since Padrick was the trustee of failed ponzi scheme that involved tens of millions of dollars his actions were of public interest.  Furthermore, because Cox accused Padrick of fraud among other things, her accusations were also a matter of public concern.

One thing the Ninth Circuit Court of Appeals did not address is how she made her accusations.  Some individuals have asserted that Cox’s motives  are not all that pure and even go so far as to call her manipulative with financial motives, rather than a journalist.  Critics say because her day job is to manage people’s reputations on the internet and when acting as an investigative journalist, Cox has registered dozens of domain names to negatively influence the search results of a person’s name. Cox will then ask for a fee in order to repair one’s reputation.  See Complaint at 2-4 Randazza v. Cox, 920 F.Supp.2d 1151 (D. Nev. 2013) (No. 12-02040).

In my opinion, part of the issue is definitely how Cox made the speech.  By linking together multiple websites together to voice her opinion, Cox manipulated the search engine results.  Professor Eugene Volokh, who represented Cox at the oral argument in front of the Ninth Circuit Court of Appeals, argued previously that search engine rankings are a type of corporate speech made by the search engines.  If Professor Volokh’s argument is believed, then Cox’s speech should not be considered pure at all.

I do not believe there is any case law on whether search engine manipulation can be considered defamation or not.  However, this technological part of the argument is something that the Court missed in their analysis.  In a later post, I will analyze Professor Volokh’s argument about search engine rankings being considered speech, and the logical extension, if search engine rankings are manipulated can that be considered defamation.