The University of North Carolina (UNC) NCAA men’s basketball team ended the 2017 season for the University of Kentucky (UK) in a controversial game. Indeed, many UK fans blamed their team’s loss on supposed bad calls by a referee, John Higgins.
The wrath of the UK fans was so intense that Higgins received criticisms at his private job. On top of that, two Kentucky Sports Radio (KSR) hosts, Drew Franklin and Matt Jones (the hosts), vented negative comments about Higgins’ officiating. In so doing, the hosts conveyed online attacks that had been posted about Higgins. While reporting about the online attacks, the hosts at times repeated the attacks word for word, while minimally suggesting that fans not promulgate further attacks.
Higgins believed that the attacks and the reporting harmed him personally and his business. He filed suit against KSR and the hosts, alleging various causes of action. The federal district court dismissed the lawsuit based on the First Amendment, and Higgins appealed to the Sixth Circuit. In a recent decision in Higgins v. Kentucky Sports Radio, the Sixth Circuit agreed that the district court correctly dismissed the case on First Amendment grounds.
As part of its discussion, the Sixth Circuit stated that “fans have every right to read about and discuss, the ‘manner’ in which the referees called the game,” while noting that “[d]evoted sports fans are not known for their evenhandedness in judging referees.”
Then as part of its initial First Amendment examination, the Court found that a matter of public concern was addressed by the defendants’ actions. Specifically, the Sixth Circuit stated:
“Just as commentators must be able to discuss the quality of the officiating, they must be free to comment on the fans’ reaction to the officiating. That means 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. For Kentucky sportscasters, Higgins’ calls and the public’s reaction may have been the biggest story of the news cycle.”
The Sixth Circuit also did not find that the defendants’ conduct amount to an incitement to imminent lawlessness that would have eliminated First Amendment protection. The Court stated that “Higgins has not identified any statement made by the defendants, explicitly or implicitly, that fans should attack his business.” And the First Amendment “shield[s] Kentucky Sports Radio from liability for its occasional approval, and sometimes facetious approval, of the fans’ over-the-top behavior.”
As far as potential defamation, the Sixth Court concluded that the defendants did not act with sufficient malice: “Merely repeating potentially false reviews generated by other users may be in bad taste. But it cannot by itself constitute defamation. And good thing too. If it could, any news article discussing the tendentious Twitter exchange could land its author in front of a jury. That would make the authors of the First Amendment cringe.”
Interestingly, the Sixth Circuit did not rely upon Section 230 of the Communications Decency Act in reaching its ruling. Section 230 generally immunizes Internet service providers with respect to third-party content posted on their sites. The wide sweep of Section 230 immunity has been criticized lately, including calls for reform and even an Executive Order by the President. In Higgins, the Sixth Circuit grounded its decision on the First Amendment.
In its wrap-up, the Sixth Circuit noted that “[p]erceived missteps in the public eye these days all too often unleash torrents of anonymous online hate,” and [o]ne can hardly blame the victim of such onslaughts for wanting redress.” But the Court continued by stating that “a gulf lies between commenting on harassment and causing it,” and “in that respect, the First Amendment protects the rights of sports radio talk show hosts just as it protects the rights of presidents.”
Plainly, this is a win for First Amendment free speech advocates. Even speech that is not popular and harsh can be protected in court.
Eric Sinrod (@EricSinrod on Twitter) is of counsel in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.