Referee's Tort Claims Stuffed by Appeals Court
As evidenced by the packed arenas, face-painted fans, pep bands and post-game shouts (or laments) on sports talk radio, college basketball fandom can be a serious game. Now, multiply that sentiment times ten when considering how rabid the local fans and alums in the "Big Blue Nation" are for University of Kentucky basketball. Similarly, but with perhaps less fanfare, the federal courts take the First Amendment seriously. Earlier this year, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of tort claims against a radio station and its hosts for allegedly encouraging the actions of an anonymous group of fans who had begun an online and offline trolling campaign against a referee and his roofing business after he purportedly blew several calls during a contentious 75-73 Kentucky loss in the 2017 NCAA Men's Basketball Tournament "Elite Eight" game against rival University of North Carolina. (Higgins v. Kentucky Sports Radio, LLC, No. 19-5409 (6th Cir. Feb. 27, 2020)). Barring a rehearing, the buzzer appears to have sounded on this dispute, which has lasted far longer than the 40 minutes of a regulation college basketball game.
Some readers may recall that we previously wrote about this dispute in our September 2019 Edition of Three Point Shot. To briefly recount the facts in the record, following Big Blue's bitter 2017 NCAA Tournament knockout many Kentucky fans blamed the loss on the officiating of one of the game referees, plaintiff John Higgins ("Higgins" or "Plaintiff"). Soon after the loss, fans discovered that Higgins owned a roofing business, and began an online trolling campaign that led to negative reviews on the company's Facebook page, a slew of unwanted phone calls, and even physical threats that compelled the police to get involved. This fast break of vitriol could also be heard on Kentucky Sports Radio, LCC ("KSR"), where a radio show host, Matthew Jones and KSR website editor Drew Franklin (the "Hosts") added their own scathing commentary about the game and Higgins' "putrid" calls during post-game shows and in blog posts and articles published on KSR sites. While explicitly noting that they did not condone trolling behavior, the Hosts, at times, laughed about or gave "facetious approval" of the fans getting after Higgins and also reproduced screenshots of abusive social media posts from anonymous fans on the KSR blog as well as a link to an unhappy fan's video targeting Higgins' roofing business.
In 2017, Higgins filed claims against KSR and the Hosts for their alleged technical foul in reporting on the trolling campaign waged against Higgins. Higgins asserted claims for intentional infliction of emotional distress, invasion of privacy, and tortious interference with a business relationship, among others. Higgins claimed that the Hosts incited and sustained the trolling campaign, which substantially affected Higgins' roofing business. In March 2019, a Kentucky district court dismissed the suit, ruling that the Hosts' statements were made in a public forum and on "matters of public concern" and were therefore protected by the First Amendment (and that "general principles of common decency and journalistic ethics was not an appropriate consideration for this Court"). (Higgins v. Kentucky Sports Radio, LLC, No. 18-043 (E.D. Ky. Mar. 20, 2019)).
On appeal, the Sixth Circuit analyzed the x's and o's and held that the lower court correctly ruled that the First Amendment provided a strong defense and barred the liability theory underlying Higgins' claims. The court first addressed the meaning behind "matters of public interest," and whether speech involves a "public or private concern." Importantly, the court noted that sports coverage implicates public concerns because of the in-depth coverage published throughout the nation in daily newspapers and the existence of periodicals exclusively focused on sports. According to the court, the coverage of games includes criticism of team performances and commentary on the quality of the officiating:
"Kentucky Sports Radio could fairly discuss the game—and could freely criticize those who participated in it, including the referees, the coaches, the players, the fans, and for that matter the commentators. […] Sure, some Kentucky fans likely tuned in to Kentucky Sports Radio's coverage of Higgins solely for the schadenfreude. But even if its discussion served only that purpose, the discussion's 'inappropriate or controversial character' would not influence our analysis as to 'whether it deals with a matter of public concern.'"
The Sixth Circuit also found that the Hosts' discussion of Higgins's business was only done in context with the fans' criticism and noted that Higgins had used his role as a referee to garner business in his roofing business by not so subtly naming his website "rooferees.com." The court went on to state that Higgins "cannot seek damages from pundits who called attention to the existence of a business that he promoted with his status as a referee before that became a liability."
The court also determined that the sequence of events was important in that the adverse fan reaction preceded KSR's coverage. Indeed, the court noted that a fan had posted a video identifying Higgins' roofing business before the KSR post-game show, and the "fan community anonymously coordinated retaliation online without the station's prodding."
Higgins also failed to take it to the rack when the appeals court rejected his arguments that the Hosts' commentary incited the fans to take unlawful measures and therefore fell outside the First Amendment. The court held that
despite KSR's coverage that "did more to fan the flames of discontent than to extinguish them," Higgins failed to identify "any statement made by the defendants, explicitly or implicitly, that fans should attack his business." The Hosts could not have incited lawlessness because they did not "specifically advocate" for listeners to take unlawful action. The court reiterated that the commentary on the trolling campaign against Higgins took place only after fans retaliated and the reporting did not call for action.
Dismissing Higgins' claim of defamation was an alley-oop for the court, which found that Higgins is a public figure and the statements he objected to, specifically the criticism on his refereeing, related to matters of public concern. As a public figure, Higgins needed to show that KSR had acted with "actual malice – that it knowingly made false statements or acted with reckless disregard to the truth of its statements." The court did not find such malice: "Merely repeating potentially false reviews generated by other users may be in bad taste. But it cannot by itself constitute defamation."
The Sixth Circuit's dagger of a decision not only affirmed the lower court's ruling but importantly highlighted the reality of individuals who step "into the public limelight." While Higgins used his role as a referee to garner business, such a public role also made it much harder to call a foul. "A gulf lies between commenting on harassment and causing it," the court stated, ultimately concluding that a ruling in Higgins' favor would have decreased the efficacy of First Amendment protections for journalism and other types of criticism.