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Donald Sterling and Privacy

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Listening to the surreptitiously-recorded conversation between octogenarian Donald Sterling and his much younger girlfriend, I felt doubly sickened: first, by the casual racism of Sterling's comments; and second, by my own participation in an invasion of privacy on a truly massive scale.

We are experiencing viral voyeurism.

I can't figure out, and don't much care, why Sterling repeatedly pressed his girlfriend to end her association -- on Instagram and in public -- with black men. His words were bizarre, pathetic and, yes, plainly racist. But I was even more troubled by the coerced exposing, over the internet, of a couple's most private, even intimate, conversations -- and the resulting punishment of Sterling, including banning him from the league, a $2.5 million fine, and the destruction of his reputation -- all at a speed that makes Taliban tribunals look like models of due process.

That Sterling may be deserving of such mistreatment is beside the point. The point is that We, the People, are not deserving of Sterling's mistreatment.

If the rules of fundamental decency, privacy and fairness can be suspended for Sterling, they can be suspended for all of us. The line between mob justice and the rule of law is fine -- all the more so when the "mob" consists of millions of people, many of them anonymous, linked in a network of instantaneous, mass communication.

For our sake (if not his), Sterling must be given an opportunity to defend himself. For our sake (if not his), the NBA should rescind its sanctions against Sterling and investigate the circumstances surrounding the recording of the damning conversation. (Note to investigators: in California it is a felony to record a private conversation without the consent of all parties).

We all benefit from enforcing legal protections of the confidentiality of our private conversations with our spouses, with other family members, and with best friends. Absent a warrant based on probable cause, these conversations are not the business of government or of strangers who would do us harm.

Fundamental to the principles of the First Amendment (freedom of speech) and the Fourth Amendment (personal privacy) is the right to decide who, if anyone, may hear our private thoughts. If this right can be so completely and immediately breached in the case of Donald Sterling, it will have little value for the rest of us.

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Peter Scheer, a lawyer, is executive director of the First Amendment Coalition, a nonprofit dedicated to freedom of speech and government accountability.