by Michael Dorf
My latest Verdict column discusses the legal and quasi-legal issues presented by the NBA's disciplining of LA Clippers owner Donald Sterling. Picking up on an objection of Dallas Mavericks owner Mark Cuban (which he appears to have dropped), the column argues that the NBA, like other organizations, should respect the freedom of speech (even though the First Amendment does not itself bind private entities), and that severe punishment for offensive speech is, at least prima facie, problematic. I say that the NBA therefore needs some limiting principle to explain why it can banish an owner for racist remarks but can't (or at least won't) administer similarly harsh discipline to players, coaches, announcers, and owners for homophobic speech, sexist speech, etc.
I'm not saying that the NBA and its partners don't administer any punishment, but big stars get forgiven, not banished for life. Kobe Bryant was fined $100,000 for a homophobic slur and announcer Marv Albert was banished from the network for a relatively short period for criminal sexual attacks.
Spoiler alert: My column argues that by distinguishing between mere offensive speech and speech that amounts to racial harassment, the NBA can draw a line that permits banishment of Sterling but not routine censorship.
Still, as the contrast between Albert's treatment and Sterling's illustrates, there's something a bit odd here: It seems that bad words are treated as worse than bad deeds. I'm not going to go into the rape charges against Bryant, as they were dropped. But other basketball players--and other athletes--do commit some serious offenses without getting banned for life.
So I begin with a puzzle that goes beyond sports: Both Cliven Bundy and Donald Sterling engaged in bad deeds before they said bad words. And yet despite the adage that actions speak louder than words, it was their words, rather than their deeds, that brought nearly universal opprobrium on them. Why?
In Bundy's case we have a ready explanation. His bad acts consisted chiefly of armed resistance to the federal government, which, for a not-inconsiderable-portion of the libertarian right, rendered him a folk hero. His refusal to pay grazing fees and taking up arms were not about race in any obvious sense. And so libertarians who did not want to appear to be endorsing racism did not have reason to distance themselves from Bundy until he expounded his racist (and profoundly though unintentionally ironic) views about government dependency.
But that explanation won't work for Sterling. Long before he was recorded expressing his racist views, Sterling engaged in race discrimination in housing and employment. Much of the recent coverage of the open secret of Sterling's racism has taken the form of the question whether the NBA should have seen this coming, but we might ask a more fundamental question: If the league was going to fine and then ban an owner for racism, why was the statement of racist views considered worse than acting out race discrimination on the basis of those views, rather than vice-versa?
Let me hold off on answering that question by first exploring a couple of seemingly unrelated questions. The first concerns the Authorization for the Use of Military Force (AUMF) adopted in the almost-immediate aftermath of 9/11. In a magnificent piece of long-form journalism, Gregory Johnsen writes on Buzzfeed how the operative "60 words" of the AUMF have provided the legal justification for the longest war in U.S. history against an indeterminate enemy spanning the globe. A recent Radiolab podcast covers much the same ground in the show's characteristically engaging style. And yet, while I found the article and the podcast to be very insightful, they are also profoundly confused (or more charitably, unclear) about exactly what work Johnsen and the Radiolab guys think that the 60 words of the AUMF are doing.
On the one hand, they point to the vagueness and ambiguities in the AUMF itself as creating opportunities for the Bush and Obama Administrations to wage war more or less as they have seen fit. On the other hand, they note ways in which the key justifications have been manufactured extra-textually. For example, both the article and the podcast discuss how government lawyers have relied on the concept of "associated forces" to expand their list of targets beyond 9/11 perpetrators and core al Q'aeda to include Islamists throughout the Middle East, Africa, and elsewhere. Yet the term "associated forces" appears nowhere in the AUMF--as the article and podcast also note. Is this illegitimate mission creep? Or is it, as also suggested in the article and the podcast, simply the straightforward concomitant of making war?
Harold Koh provides another case in point. The Johnsen article notes how Koh evolved from a critic of the AUMF's breadth (when still an academic) to an insider who was comfortable bending and stretching it (as legal advisor to the State Department). Meanwhile, the Radiolab guys depict Koh as the person in the room where targeting decisions are being made who stands up for restraint. They report how Koh applied more stringent criteria than some of the military brass. But they don't seem to notice that Koh's criteria were not in any obvious sense derived from the text of the AUMF. And as we saw during the Libyan conflict, when Koh said that the War Powers Resolution didn't apply because U.S./ planes were flying too high to be hit by the Libyans so there were no "hostilities", as a government lawyer, Koh was very capable of doing what government lawyers do: making arguments that expand the envelope of restraints that might otherwise limit the government.
These (and other) examples raise an obvious question: Just how important were those 60 words? If they had differed in one or more particulars, would that really have made a difference? Consider one of the most controversial exercises of U.S. military power pursuant to the AUMF: drone strikes against U.S. citizens. In the recent district court ruling throwing out the wrongful death action on behalf of the surviving family members of Americans killed by drone strikes in Yemen, the judge found that there was no cause of action. That ruling did not in any way depend on the wording of the AUMF.
I don't mean to say that legal texts don't matter. In ordinary cases, they matter a great deal. Even in extraordinary cases, such as authorizing or not authorizing wars, they matter. But the way in which they matter is different in the latter situation. Then-Senator John Kerry's and Hillary Clinton's support for the Iraq AUMF in the fall of 2002 prevented each of them from becoming President (although in Clinton's case the right verb is probably "delayed" rather than "prevented"). By signing onto what became Bush's adventure, Kerry became a co-owner of the war, which made him a weak challenger to Bush in 2004. Likewise Clinton's support for the war (combined with the incompetence of her 2008 political team) ceded the Democratic nomination to Obama. Would the Bush Administration have gone to war in Iraq in 2003 even absent congressional authorization? Maybe. But at the very least, things might have played out differently in all sorts of ways.
More broadly, even when laws fail to bind, they can have consequences. Consider the lawsuits filed by the Nonhuman Rights Project (NRP) on behalf of captive chimpanzees, which were described at length in a recent NY Times Magazine cover story. I share most of the values and goals of Steven Wise, the President of the NRP, but I have two misgivings about his legal strategy.
First, although Wise himself believes (as I do) that rights should be extended to a wide range of nonhuman animals, the NRP court filings (like this one) emphasize human-like characteristics of chimpanzees such as "autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, language planning, mental time travel, numerosity, sequential learning, meditational learning, mental state modeling, visual perspective-taking . . . symbolic culture, cross-modal perception, tool-use, tool-making, [and understanding] cause-and-effect." To be sure, the NRP filings are careful to argue that these characteristics are sufficient to confer legal personhood on chimps, rather than necessary, but in emphasizing the fact that chimps are almost human, the case essentially asks the court to redraw the legal line between persons and things somewhat more generously, but in a place that still leaves sentient beings like cows, chickens, and rats on the "thing" side of the line. I know that Wise et al hope that the proposed expansion of the person category is only a first step that will eventually lead to a greater expansion, but it is also possible that his approach could end up reinforcing a line between the sentient beings who count and those who don't.
Second, I think Wise's lawsuit is doomed to fail in any event. The Times story recounts how Wise was furious about PETA's lawsuit against SeaWorld. I also thought the PETA lawsuit ill-conceived, as I noted at the time. But Wise's objection strikes me as naive. Wise calls the PETA lawsuit "idiotic" for invoking the Constitution, rather than starting with the common law, as his litigation strategy does. I agree with Wise that in general constitutional law changes after other legal changes, but the common-law strategy is almost as premature as PETA's constitutional strategy. Until hearts and minds change dramatically, the law simply won't respond in a substantial way to pleas for justice for nonhuman animals, and if it does respond here or there, the legal advances will likely be quickly reversed. Wise says that he's looking for one judge to accept his argument, but he obviously needs more than one if he wants a favorable ruling to be upheld on appeal.
Unless, that is, Wise is cannier than he lets on. It is possible to win by losing, if your goal is in fact to change hearts and minds, so that behavior changes, and eventually law changes. If that is in fact Wise's goal, then he has already won a substantial victory by getting widespread and generally favorable news coverage for his cause. Just as laws that fail to bind their nominal targets can have important consequences through politics, so lawsuits that lose can have important consequences as vehicles for raising consciousness. Some legal documents--whether an AUMF or a legal complaint--are more important for what they say than for what they do.
And that brings me back to Bundy and especially Sterling. Here are men whose words spoke louder than their deeds because their words provided ready focal points, vivid examples, in a word, symbols. Yes, there's something peculiar or even hypocritical about reacting so strongly to words after tacitly condoning deeds, but we should recall that a big part of what makes any act of race discrimination objectionable is the message it conveys. Accordingly, we should not be especially surprised that the more articulate expression of that message--i.e., the one articulated through words--draws greater condemnation.