In an era of excessive tape recording, no business mogul appears to be safe at home or at work. Just ask Donald Sterling and Roger Ailes - two titans of the entertainment world who were brought down by secret tape recordings.
Ailes, the former chairman and CEO of Fox News, managed to escape relatively unharmed compared to the treatment endured by my client, ex-Los Angeles Clippers owner Donald Sterling.
In the last month, Ailes resigned after numerous sexual allegations by employees. Reportedly, over 20 women came forward accusing the 76-year-old former media mogul of sexual harassment. Most notably, former Fox News host Gretchen Carlson accused Ailes of sexual harassment. Following a media frenzy, Carlson settled a lawsuit with 21st Century Fox for a reported $20 million with Ailes paying an undisclosed portion of the settlement amount.
The settlement comes days after news broke that Carlson had secret tape recordings of Ailes’ sexual advances. This situation has raised many comparisons and questions in my mind concerning how the use of tape recordings has affected an individual’s ability to receive fair treatment in the court system.
In April 2014, two years after the death of 17-year old Trayvon Martin and nearly a year after Black Lives Matter gained national prominence, racial tensions in the United States were higher than ever. The mainstream media publicized videos of racism occurring throughout the country on a seemingly daily basis.
With social media making news more accessible, “think before you tweet” became more important than ever; 140 characters is sometimes all it takes to ruin a person’s reputation. I believed that I understood the volatile state of race in America, but I had no idea a phone call would thrust me into one of the most controversial and highly publicized cases of the 21st century.
At the time, my knowledge of Donald Sterling was limited. I was aware that the billionaire businessman owned the Los Angeles Clippers, but not much more. With 33 years of ownership, Sterling was one of the longest tenured owners in NBA history. However, Sterling’s time as the owner of the Clippers came to an abrupt end in April 2014 when his legacy was forever tarnished by controversial statements and accusations of racism.
That April, celebrity gossip site TMZ released an audio recording of a man reported to be Sterling making racial remarks to his personal assistant V. Stiviano, following an Instagram post featuring Stiviano and basketball Hall of Famer Magic Johnson. In the recording, the man made reference to Stiviano associating with a black person. Following a public outcry, NBA Commissioner Adam Silver announced that Sterling would receive a lifetime ban from the NBA, a $2.5 million fine, and would be forced to sell the Clippers.
When the story broke, Sterling became the “Most Hated Man in America,” according to many media outlets. One would believe, by watching the news, that Sterling personified the smoldering undercurrent of discrimination that America has fought hard to extinguish.
To me, serious concerns existed with respect to the tape’s authenticity. However, the media had already acted as judge, jury and executioner. It was not until the Ailes story hit the headlines that I witnessed a tape recording, again, making such an impact to a lawsuit.
The difference in the Ailes and Sterling cases is in the law. New York is a “one-party consent” state. This means it is a crime in New York to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. The New York law is only intended to stop unwanted (and presumably unknown) eavesdroppers. California, on the other hand, is a “two-party consent” state. This makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.
Therefore, Carlson’s recording of Ailes was permissible since she consented to the recording. However, if unauthorized tape recordings are illegal in California without the consent of both parties, why was Stiviano not charged with a crime? No logical person would ever concede that Sterling would approve of such a recording if that had been his voice.
Carlson reportedly recorded numerous incidents of Ailes making inappropriate advances between 2014 and 2015. According to some reports, Ailes stated in one recording: "I think you and I should have had a sexual relationship a long time ago, and then you'd be good and better and I'd be good and better. Sometimes problems are easier to solve." Since the recordings allegedly occurred in New York, Carlson was able to use these recording as leverage in her legal battle and she eventually netted $20 million.
Even though Ailes denied Carlson’s allegations, he was forced out of his post at Fox News. Carlson became a media heroine for fighting against sexual harassment in the workplace and Ailes still walked away with a reported $40 million severance package.
While no one knows for sure what Carlson’s recording contained, Stiviano’s recordings were released for the entire world to hear. The media can only speculate what Ailes said to Carlson. However, Sterling was ripe for media scrutiny.
Even before the media (or anyone for that matter) could verify that my client made the statements, Sterling’s reputation was ruined by the opinions and viewpoints of media outlets. My client, a man who received an NAACP award five years earlier and was selected to receive a lifetime achievement award the same year, was labeled a racist immediately after news broke and the team he owned for more than 30 years was forcibly sold. Even though Stiviano broke the law, she emerged unharmed.
In my opinion, the reason Stiviano was not charged is because the Los Angeles County District Attorney had to walk a fine line between the duties of the profession and media scrutiny. My client has always been adamant that he did not know Stiviano was recording him. Therefore, she broke the law.
However, charging Stiviano would imply that the DA embraced Sterling. More importantly, it would infer the DA was condoning Sterling’s purported statements. With racial tensions already high in the country, the DA likely believed that charging Stiviano would increase tensions, rather than ease them. In addition, charging a woman who exposed racism is not a wise career decision. The DA’s reputation could have also been tarnished if the DA decided to press charges against Stiviano.
It might sound odd to think of a man who received a record-breaking $2 billion sale price as unfairly treated. However, the amount of money never mattered to Sterling. He owned the Clippers because of his love for the sport, the team, and the fans. The damage to his reputation significantly outweighed the amount he received through the forced sale. With all the good achieved by the advancement of technology, one casualty has been our right to privacy. One has to wonder, what happens when we live our daily lives assuming our private conversations are being recorded?