Cameron Schaeffer: Is the Sterling ordeal a step toward criminalizing speech?

May 6, 2014 

Cameron S. Schaeffer of Lexington is a pediatric urologist.

All a body can do is act, speak and think; governments control how freely citizens act, speak and think.

People everywhere live on a continuum of freedom. They can say or do as they please, provided they harm no one, or they can be North Koreans, who can still think because the government has yet to create a way to prevent thinking. Most people live somewhere in between, and the totalitarian project operates between the two ends of the spectrum.

Human action is constrained by laws and individual conscience. When laws are few, people must learn to do the right thing. When a government does not trust its people to behave appropriately, it creates conduct rules. The more rules it creates, the fewer chances its citizens have to struggle with right and wrong and to mature as decent human beings. When rules become innumerable and oppressive, everyone becomes a criminal.

With every passing decade, the number of laws and regulations governing conduct in this country grows, crimping our moral growth and our ability to make good choices for ourselves and for those around us. And with every new rule, we are handed a new, ill-fitted shoe, and forced to deal with the discomfort until we get used to it.

The law punishes bad conduct, but should it also punish speech and thought?

Matthew Shepard, a gay man, was brutally murdered in Wyoming, and James Byrd Jr., a black man, was dragged to his death behind a pickup truck by three white men in Texas. A federal hate crime law is now on the books. Should the law be in the business of reading minds, or should it only address conduct? Murder has always been illegal.

So what can be said of Los Angeles Clippers owner Donald Sterling?

That he is a sorry excuse for a human being is clear enough. His racist heart has been exposed, through his actions as a landlord and now through his speech. His conduct as a slumlord was addressed under the law, appropriately enough, but the press and the National Basketball Association said little. His words, however, set off a firestorm.

Sterling's business partners are punishing him. When they organized the NBA, the team owners likely considered the possibility of one of their own going off the rails and planned for it. Sterling probably will sell the Clippers, and he will walk away with a billion dollars. The buyers will feast on the carcass of his verbal missteps, and there will be widespread preening that the right thing was done.

Whether the NBA can force the sale of the Clippers is unclear. Whether a man can be forcibly separated from his property based on what he said privately, his words obtained and disseminated without his permission, might become a legal question. If it does, we could find ourselves one step closer to the criminalization of speech.

Perhaps it is better to avoid a collision of speech and law. The Clippers players could quit and the fans could stay home. Sterling, as an American, would be free to say and think what he wants while he sits in an empty arena, becoming as impoverished as his mind. It is worse to be a broke pariah than a rich pariah.

Where speech is criminalized, the totalitarian project requires the monitoring and suppression of speech.

The American nose catches the first whiff of this stuff and sneezes, thus the outrage about the Internal Revenue Service's targeting of conservative speech and the National Security Agency's monitoring of telephone calls. We are assured that call content is not being recorded, but we know that it only takes the flip of a switch.

China erected the Great Wall to block its neighbors. It built the Great Firewall to block websites. Turkey has shut down Twitter and YouTube. America is now considering surrendering control of the root name servers of the Internet. The totalitarian project continues.

Dr. Cameron S. Schaeffer of Lexington is a pediatric urologist.

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