Harvard Law School Professor Alan Dershowitz condemned Los Angeles Clippers owner Donald Sterling's "very bad" racist comments, but told Newsmax that his greater concern was that "I don't think we want the thought police to be intruding on people's private conversations."
"We need to preserve privacy," Dershowitz said in an exclusive interview on Wednesday. "We need to be able to preserve a person's ability to share his thoughts, even if we don't agree with his thoughts, with private people."
Sterling, 80, was banned from the National Basketball Association on Tuesday for making racist remarks. He was banned for life
and fined $2.5 million by Commissioner Adam Silver. Silver also asked the governing board of fellow owners to act immediately to force Sterling to sell the Clippers, which he bought 33 years ago.
Sterling is the longest-tenured owner of any of the 30 NBA teams. He vowed to Fox News on Wednesday that he was not selling
The controversy began over the weekend when the celebrity website TMZ.com released an audio recording with a voice said to be Sterling's criticizing a friend for associating with "black people."
An investigation into the recording concluded the voice was Sterling's, Silver said at his Tuesday news conference.
The TMZ.com recording included part of an argument between Sterling, who is married, and his mistress — a model later identified as Vivian Stiviano — about photographs posted to Instagram. The conversation was private and was recorded by Stiviano without Sterling's knowledge.
"Whenever intrusions on privacy bring about media stories like this, the focus tends to be on the content and not on the process — how it came about," Dershowitz told Newsmax.
"It's very important to focus on the process."
He said that he was not "defending the content of the statements. They're very bad. I'm talking about how we came to know them. How the media came to know them."
The professor said that the Sterling comments raised several privacy issues. They include writing private thoughts in a diary that was later made public — and disparaging statements that were made publicly.
Regarding the latter point, he cited when former NBA players Dennis Rodman and Isiah Thomas made negative comments
about Larry Bird in 1988 after the Detroit Pistons lost to the Boston Celtics in the NBA Eastern Conference finals.
"That became a big story, because he said it in public," Dershowitz said, referring to Rodman. Thomas later chimed in on the remarks.
But also falling within that realm were former Massachusetts Gov. Mitt Romney's damaging "47 percent"
comments at a private fund-raiser in Florida during the 2012 presidential campaign and Secretary of State John Kerry's recent "apartheid"
remark about Israel.
"Those were said in small groups, but they were said in a more public context," Dershowitz told Newsmax.
The Sterling situation, however, involved "statements made to a trusted loved one that he understood were to be private and would never be disseminated and were illegally recorded," he said.
"What you have is a continuum of privacy. The continuum of privacy starts in the mind itself. We certainly don't discipline people for what they're thinking. We don't discipline people for what they write to themselves. Should we be disciplining people for what they say to their loved ones?
"I think that, although I completely understand the outrage at the content, we do have to think hard about the path we're going down when we start encouraging TMZ and others to publish private communications that are illegally obtained," Dershowitz said.
"We need to preserve privacy. We need to be able to preserve a person's ability to share his thoughts, even if we don't agree with his thoughts, with private people."
Dershowitz also noted that the outrage over Sterling's remarks were in contrast to that over the National Security Agency's seizing of millions of Americans' telephone and email communications without court approval, revealed in leaks by Edward Snowden.
"It's interesting that the media hasn't focused on that aspect of it," he observed. "We're so concerned about privacy, but here we essentially applaud — implicitly applaud — both the woman who recorded it and the media organization that broadcast it."
Further, it's clear that the Sterling-Stiviano conversation was private, the professor told Newsmax.
"I felt very uncomfortable listening to the conversation, because it is an intimate conversation. It is an argument between two lovers — and I'm not used to listening to arguments between lovers.
"In some respects, I said to myself, 'It is none of my business to hear this conversation,'" Dershowitz added. "He didn't broadcast his views about race; she broadcast them — after eliciting them from him.
"But on the other hand, he made those statements. He is responsible for those statements. The question is, are we entitled to listen to a tape of an intimate conversation with a mistress? That's the question that ought to be asked."
In the tape, Sterling can also be heard making negative comments about Ethiopian Jews, saying that they "are just treated like dogs" in Israel. Born Donald Tokowitz in Chicago, Sterling is Jewish.
Dershowitz also condemned those remarks to Newsmax, calling them "pretty horrible."
"It's a lie. I've represented a lot of Ethiopian Jews — and it's a clear lie to say that they're treated like dogs. It's just a lie.
"He's a man who tends to talk in extremes and tends to blow off a lot of steam," he added.
"If we're entitled to listen to his conversations, we should condemn them. The real question is, are we entitled to it?
"My question is," Dershowitz continued, "how many Americans could survive having their most intimate conversations about race published? How many white people could survive that? How many black people could survive that?
"There is some value in preserving privacy."
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