The Silencing of the Commons

Over the weekend, Los Angeles Clippers owner and real estate Tycoon Donald Sterling was allegedly recorded making disparaging comments about Magic Johnson and black players. His comments were made during, as TMZ says, a “heated argument” with his girlfriend V. Stiviano (who has black and Mexican ancestry). The comments were in response to Stiviano posting a picture of her with Magic Johnson on Instagram.  The audio can be heard on TMZ’s website.

Some of his comments were:

“It bothers me a lot that you want to broadcast that you’re associating with black people. Do you have to?”


“bring him [Magic Johnson] here, feed him, fuck him, I don’t care. You can do anything. But don’t put him on an Instagram for the world to see so they have to call me. And don’t bring him to my games. OK?”

It is unfortunate that he has these views, but not a surprise. Sterling has exhibited problematic behavior before.  He confidentially settled a lawsuit in 2005 charging him with discriminating against black and Hispanic tenants.  That same year, Sterling, agreed to pay an undisclosed amount in a lawsuit that alleged Sterling tried to force non-Koreans out of apartments in Los Angeles’ Koreatown.  Furthermore, Former Clippers GM Elgin Baylor filed an age and race discrimination lawsuit alleging that Sterling wanted a team of “poor black boys from the South … playing for a white coach.”

But this is not a post  about race and racism, but about digital technology and its social consequences. From that perspective,  it leads me to sympathize with Donald Sterling.

The Public and the Private

Sterling’s current problems are not just caused by his racial views, but also by a collapsing of the public and private brought on by new technologies.

In 2007 Don Imus made a comment about the Rutgers University Basketball team, calling them “nappy headed ho’s”. He was first suspended for two weeks by his employer, CBS radio. In an effort to keep his job, Imus traveled the radio circuit issuing apologies. It was not enough, and he was subsequently fired. Eventually, Don Imus was able to return to radio, and currently hosts the nationally syndicated radio show Imus in the Morning.

Don Imus, on a national radio show, needed to be careful with his words. He was being racially insensitive in public space. CBS was completely justified in firing Imus. Aside from his comments being inappropriate and hurtful, his comments could also affect CBS radio’s bottom line with sponsors withdrawing their ads.

Sterling’s comments were an order of magnitude worse than Imus’s. However, Sterling’s comments occurred in what should be seen as a private space. An argument with his girlfriend is a private matter. The opinions he expresses are meant for that private audience.  The punishment that Sterling receives should be based on his public actions, not on his words expressed to an intimate – especially words surreptitiously recorded through some device.

New Technologies, Old Laws

We tend to think of the public space as spaces outside of the home.  This was how public and private space was understood by our founding fathers.  They could not envision such a world where any conversation or gesture could be recorded and transmitted instantly.  There was no need to protect conversations between loved ones, friends, or intimates because there was no practical means of violating that privacy.  However digital technologies have become cheaper, smaller, and more powerful. As a consequence, it is easier to evade the invisible barrier between the public and private.

As a society, we have been slow to recognize this. It is generally legal to photograph or record in public. This includes people, places, and things.  Take for example the case of a man taking “upskirt” videos of a women on Boston subways earlier this year.  The Boston courts ruled that because the women were not nude or partially nude, the photos were legal!  As written in the story from the AP: “Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.”

The reason why our laws on public recordings worked until now was because technologies could not evade the invisible barriers between public and private that we carry with us even though we are in public spaces. There was no need for an upskirt law because it was almost impossible to take such pictures. Our laws have not moved at the same pace as the technology they govern.

Just one more example to drive home the point. Consider a mother and teenage daughter in a grocery store. The mother screams in exacerbation to her daughter “I wish I had never had you!” The daughter, looking hurt the mother in anyway she can, then retorts, “I hate you! I hate you! I can’t wait to finish school and move in with Jamal!” To which the mother says, “Sure, go ahead and live with that black boy and ruin your life forever! Don’t call me when you need help.”

((Forgive the stilted dialogue and clichés))

Someone could be standing in the vicinity of these two, record it on her smartphone, and then post it to YouTube. The conversation took place in public space. But this is truly a private exchange between mother and child. The video goes viral. The mother ends up on Dr. Phil being brought to tears as she examines her racist assumptions. Jamal and the studio audience forgive her. Had the conversation not been recorded, the mother and daughter would have forgotten that the conversation had occurred. The daughter probably would have forgotten Jamal, and found her way to Connor or Blaine when she goes to college.

Silencing of the Commons

I am not a fan of allowing people to record intimate conversations and make them publicly available. The same way that the women should be able to take the subway and not worry about someone taking a picture of the most intimate portions of their body – even if it is public space, people should not be able to record the intimate conversations with others – again, even if it is in public space.

Sociologists like to talk about the “tragedy of the commons”. This describes the situation of people who act according to their own short term self interests at the expense of the long term group interests.  While the long term benefits can be greater, it is often the case that in the short term, it is logical to act selfishly.  It may have been better in the short term for black people in Montgomery to take the bus (getting to work on time, feet ache, etc.), but they clearly gained more in the long term by boycotting.  The tragedy of the commons is a seminal problem, as all collective action requires people to deny their own short term self interests in favor of long term group interests.

We have a short term interest to to catch people in the act of behaving badly.  We feel that these candid moments are real moments.  Mitt Romney’s “47% of Americans are takers” comments exemplify this. Moreover, we don’t want to restrict our use of the technology we buy (which I sympathize with).  But in the long term, everyone loses. As much as it may go against our individual self interest, we must think about the long term consequences.

There will be a silencing of the commons.   People will be even more guarded than they are now.  They will be more distrustful.  Public conversations will be a rarity.  People will only really talk with people they absolutely trust.  Gone are the days of meeting someone in a bar or park and talking to them.  Forget about bowling alone – we won’t go bowling at all for fear someone will record us.


  • Since writing this, I’ve learned that V. Stiviano’s recordings may not be admissible by California law.  This is good.  I’d rather Sterling be prosecuted based upon his past transgressions of housing discrimination than because of private conversations.  I’d also like it if media outlets like TMZ not be able to disseminate this kind of information.


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