Much has been said about Donald Sterling’s racist comments and now Mark Cuban’s follow-up to Sterling’s wake. It appears the principle dispute with these comments, particularly Sterling’s comments, is his right to free speech. While the concern for free speech is understandable, it’s misplaced.
Most cite Sterling’s right to free speech as the foundation for their argument that Sterling shouldn’t be forced to sell the L.A. Clippers.
Despite popular opinion, Sterling being forced out of the NBA has nothing to do with free speech.
The United States Constitution provides us with the right to free speech and only applies to (or can be used to defend against) state action. State action comes from state actors, who receive their paychecks from the government, either city, county, state or federal. In other words, think along the lines of police officers, courts, public schools, etc.
The NBA is not a state actor—the owners of the respective NBA teams, not Obama, ink the signatures on the players’ paychecks. Consequently, Sterling can’t hold up the Constitution in defense of the actions being taken against him by the NBA.
Sterling signed up to be a part of a private group of NBA owners who set their own rules, which they are entitled to do under the law. The government has no say over the terms of that agreement—it’s a private agreement and he has to abide by that agreement or endure the consequences of not doing so.
The private agreement dictates the consequences Sterling will endure.
Bottom line: private acts of discrimination cannot be addressed under the First Amendment. So the only way the First Amendment would come into play with Sterling’s case is if the government owned the NBA, which, in that case, the league would be operating in a deficit in no time.