At Tuesday’s press conference to announce the lifetime ban of L.A. Clippers owner-turned-First Amendment hero Don Sterling, Fox News reporter Jovian Lien pushed back at the punishment, and on Tuesday night’s The Kelly File, that clip was predictably used to fuel a segment on the injustice being done to Sterling. Amid their outrage, Kelly and her guests correctly cited California recording law, but Kelly was even more outraged in 2009, when someone secretly taped black ACORN workers in violation of state law.
Kelly and former Congressman Lt. Col. Allen West, along with attorney Steve Olenick, chewed over the question posed by Lien at the press conference, which was “Should someone lose their team for remarks shared in private? Is this a slippery slope?”
Kelly also cited comments by Dallas Mavericks owner Mark Cuban, who expressed similar misgivings. You can watch the full segment here, but the most interesting part is where Kelly and West specifically cite California law.
“If she taped him without his consent, she violated the law because California is a two-party consent state,” Kelly noted, explaining “that means both parties to a recording need to say okay, and if that didn’t happen here, then she’s violated the law.”
She then asked West if “the deprivation of his property rights, in terms of his ownership rights of a sports team, you know, his financial livelihood and the swift condemnation by every corner, basically of taking away his livelihood, is a slippery slope as Mark Cuban suggested?”
“Yes,” West agreed, “you’re absolutely right. It is a slippery slope, because when you think about the fact that he was convicted and tried in the court of public opinion, but as you just talked about, in the court of legal opinion, that evidence would not be admissible because it was a violation of the law in California.”
Of course, California’s recording statute and rules of evidence are of limited relevance to Sterling’s current situation, since the tape was publicized by TMZ, whose rules of evidence are somewhat looser than the state’s, and Sterling hasn’t been tried or convicted of anything in a legal proceeding. Going forward, the TMZ recording would have been inadmissible if Sterling hadn’t authenticated it to NBA Commissioner Adam Silver, but since he did, it’s tough to see how a court would keep it out at this point.
Still, the spirit of the law, the underlying principle, appears to have been violated. Technically, nothing that the NBA did to Don Sterling was illegal, but if the principle behind the law is important to you, so important that it overshadows the NBA’s right not to have its business destroyed, or the L.A. Clippers’ right not to work for a horrible racist with a Mandingo complex, then so be it. At least Kelly, a sharp and seasoned attorney, is being consistent with her lawyerly roots.
Take, for example, her palpable outrage at the ACORN workers who were surreptitiously taped in Baltimore, Maryland, which is also a two-party state, and even has much harsher penalties for violations than California:
Wait, okay, fine, that was just a teaser. Later in the show, Kelly convened a full two-segment Kelly’s Court over this thing, where she clearly must have at least mentioned Maryland’s tough anti-recording law:
Wait, Fox News put on three lawyers, and none of them knew about Maryland or California recording law (another of the ACORN tapes was recorded in San Diego)?!?
Megyn Kelly is nothing if not a sharp legal mind, so it is likely that she did know, and maybe even brought it up to her producers at the time. For some reason, though, someone decided that the same principled stand that applied to a white racist just wasn’t a good sell when applied to black workers at an organization that primarily served black communities, and also decided that a white douchebag dressed like a pimp (or pretending he did) was a good sale. Why would that be?
So there you have it. On Fox News, when a person of color invades your privacy, it’s a violation. When a white person invades your privacy, it’s called Christmas.