THE BLOG
05/27/2014 12:29 pm ET Updated Jul 23, 2014

Jeopardy for Both: When a Private Converation Is Taped

The dust has begun to settle about Donald Sterling and his strange (is there another word?) "girlfriend," V. Stiviano, although one is not sure we know more now than when this episode began. But what lessons can we learn from the spectacle they -- and it is they -- have caused?

Donald Sterling is a racist. That is undeniable and this article must not be read to defend Sterling or condone his words. Nor, however, is this article to be read to defend Stiviano's actions. Sterling expressed his clearly despicable thoughts to someone ostensibly close to him, presumably in confidence. So, unpopular and offensive as it may be to ask, did Stiviano commit a crime and was Sterling the "victim" of that criminal act?

Stiviano tape recorded his narrow-minded comments, and the tape was leaked or sold, and aired several weeks ago. We will likely never know whether Stiviano's publicized assertion that Sterling was told in advance that he was being taped is true. If he had been told in advance, and had not objected, he would have impliedly given his consent to the taping, negating any "crime" as we know it in the legal sense.

But let's assume she taped him without advising him first. Forget about his deplorable statements -- her conduct was likely a crime, depending on where the taping occurred. Since United States v. White, 401 U.S. 745 (1971), where the Supreme Court ruled that that the Fourth Amendment's prohibition against illegal searches wasn't violated by an informant using a concealed recorder, it has been largely left to the states to decide if tape recording is legal in that individual state.

In California, where at least some of the Sterling recordings appear to have been made, it is plainly illegal to tape record another person without notifying them in advance that the conversation will in fact be recorded. This is, by the way, precisely the reason why your stock broker, phone company and credit card company have a tape recording that tells you right off the bat that -- "for quality assurance purposes" -- your conversation may be recorded. Once you know you are being taped, they gain your implied consent to the recording. Obviously, you are free to simply hang up if you don't want them to have an audio record of the conversation.

Adopting principles long-enunciated by Justice Louis Brandeis, Justice Oliver Wendell Holmes, in his dissent in Olmstead v. U.S., 277 U.S. 438 (1928), reminded us that secret recordings are a "dirty business." And they were clearly correct. Remember Linda Tripp, who almost single-handedly brought down Bill Clinton by secretly recording Monica Lewinsky's love-sick murmurings about Clinton and her biologically stained blue dress? That was no different than Stiviano, albeit Tripp claimed she acted out of "patriotic duty." Lewinsky was indeed Tripp's victim. And don't forget, Tripp was actually indicted for the offense in Maryland which, like California, requires consent to the recording by both parties (although her indictment was ultimately dismissed.)

Now, if Stiviano had taped in say, New York, one might challenge her actions on moral grounds, but the surreptitious taping would not have been a crime. New York is a so-called "one party" state. Meaning, it is legal to tape an in-person or telephone conversation as long as one party to the conversation consents. This may surprise many people but it is true: despite the often horrible nature of secretly recording a conversation, one can legally tape record another person in New York and in many other states without telling them.

Even if Stiviano had some redemptive motive -- perhaps to show the world that Sterling is a bigot; or to help defend herself against a lawsuit by Sterling's wife (who had sued Stiviano to reclaim assets that Sterling had given Stiviano) -- if Sterling did not know he was being recorded, then, under California law, Stiviano illegally taped him if she taped him in California. In other words, she committed a criminal act, even though it is unlikely that she will be prosecuted.

Of course, Donald Sterling wouldn't be a household word today if he had left his stupid musings to himself, and his ability to hold on to the Clippers basketball team wouldn't be in jeopardy. That is, if he had simply given a moment's thought to whether the person he was speaking to might be inclined to record him, regardless of whether doing so was illegal. Putting it in its most base terms, Sterling has shown us that bad guys can be victims too!

But what have we learned? While it may be hard advice to take, everyone should take pains to make certain that what they say, even in their private moments, is fit to be heard on TMZ or its ilk. It has been more than 80 years since our Supreme Court jurists told us that taping is a dirty business -- and their words are as relevant then as they are today. Surreptitious taping has bad ramifications -- certainly for the person being recorded -- but also maybe for the person doing the recording. Yes, in several states that person is committing a criminal act for which she may or may not be prosecuted. But even if the recording were done in, say, New York where it is legal, when the word gets out that one has secretly taped, the (likely correct) suspicion is that she will do it again. In other words, the individual taping will quickly become a person you just don't want to talk to.

So the Sterling fiasco requires us to ask: Which is worse? To be a person who spews horrible, racist dogma or the one who engages in the dirty business of secretly recording them? A tough call -- and, at day's end, there's jeopardy for both!