March Madness! Court Dismisses Lawsuit Over Massive Cyberattack After Basketball Game Loss–Higgins v. Kentucky Sports Radio

Today’s opinion starts out with an understatement: “This case presents a familiar situation where some sports fanatics overreacted about the outcome of a basketball game.” The game in question is the 2017 “Elite Eight” game between the University of Kentucky and University of North Carolina men’s basketball teams. Kentucky lost the game, and the Kentucky fans blamed referee John Higgins for the loss. This video (a key part of the court’s discussion) highlights some of Higgins’ alleged bad calls. I don’t have an opinion about whether Higgins caused the loss.

You can imagine how rabid Kentucky basketball fans felt about the season-ending loss. It’s well-known that basketball is treated like a religion at Kentucky. As a former Kentucky state treasurer (an elected politician) once wrote, “There’s only one state-sanctioned religion in the Commonwealth, and that’s Wildcat basketball.” The 2016-2017 UK roster featured four incoming freshmen ranked as 5 star recruits (3 of whom became “one-and-done” players) and at least seven future NBA players (including G league players), a truly remarkable collection of basketball talent. The team seemed virtually invincible.

Even though UNC was slightly favored by oddsmakers, the loss caused enormous shock and grief among Kentucky basketball loyalists. The fan ire spilled over to Higgins’ business, a roofing business called Weatherguard with the pun alias “Rooferees” (it sounds too much like “roofies” for my comfort). He claims:

• the business got 3,000 calls in the 2 days following the game, which interfered with calls from legit customers
• the company’s Google star rating plummeted from 4.8 to 1.2
• 181 fake reviews were posted to Google
• false reports were filed with BBB
• 700 false posts were made to the company’s Facebook page, which the company shut down
• the Higgins family received death threats

Stay classy, Kentucky fans.

The Court Opinion

The plaintiffs sued Kentucky Sports Radio, including its hosts, Matt Jones and Drew Franklin, for their exhortations related to the loss. The causes of action are: (1) intentional infliction of emotional distress, (2) invasion of privacy, (3) tortious interference with a business relationship or expectancy, (4) negligence, (5) harassment, (6) engaging in harassing communications, and (7) civil conspiracy, aiding and abetting, and complicity. The plaintiffs did not bring a defamation claim. The defendants invoked the First Amendment against all claims.

The court grants the defendants’ motion to dismiss because they related to matters of public concern. The court interprets Supreme Court precedent to mean that “the First Amendment may bar state law tort claims in certain factual circumstances when the alleged tortious conduct is speech on a matter of public concern in a public place or forum.” The court says this case involved a matter of public concern:

the content of the speech—the Elite Eight basketball game—including John Higgins’s officiating performance in that game and the subsequent reaction of fans—were all matters of public concern. Public concern pertaining to the Elite Eight game and the performance of certain parties to that game, including officials, does not cease at the final buzzer. Of course, the game itself is clearly a matter of public concern, but so is the post-game analysis and reaction. In fact, many post-game shows and analyses regularly involve analysts reviewing and commenting on potentially questionable calls made by officials during crucial periods of the game. Additionally, here, the subsequent reaction of fans posting fake reviews about Weatherguard and contacting the Plaintiffs eventually became part of the overall news story about the game and was widely reported in the local and national media….

the Plaintiffs question the journalistic integrity of the Defendants but that is of no moment in this analysis. One need not be a Pulitzer Prize winning journalist to speak on a matter of public concern in a public forum…

while some of this discussion, particularly regarding Weatherguard and the fake online posts, may not be directly related to the game, all of Defendants’ speech is still related to the Elite Eight game and subsequent post-game reaction. The discussion about John Higgins, his business, and the reaction of angry fans was all part of a continuing post-game news story.

While I’m a big fan of the First Amendment, this opinion has an unmistakable “boys will be boys” subtext. The court treats the defendants’ words and actions as just talk, when the defendants obviously rubbed salt on the community’s open wound from the loss. Other than mocking the Rooferees name, there was little or no public benefit to discussing Higgins’ day job or contacting his company (other than to discourage listeners from doing that).

The plaintiffs allege that the defendants fanned the flames, but the court says that it can’t hold the defendants responsible for the actions of rabid fans or else that would chill discussion on important topics. Furthermore, the defendants eventually discouraged their fans from harassing the plaintiffs, but that came late and may not have been genuine. The court says “while the Defendants may not have gone to great lengths to discourage the third-party behavior at issue here, they certainly did not make anyone contact the Plaintiffs directly or encourage viewers to make death threats toward the Plaintiffs.”

Contrast how a court handled a similar issue last year. In Gersh v. Anglin, Anglin of Daily Stormer infamy launched a vicious attack on Gersh, a Jewish realtor who worked with Richard Spencer’s family. The court said that the First Amendment didn’t automatically protect Anglin from liability for the conduct of his audience when:

The Complaint is replete with allegations that Anglin encouraged his readers to take action against Gersh, and caused them to inundate her and her family with hundreds of hateful and threatening anti-Semitic phone calls, text messages, emails, and other communications. Gersh claims that Anglin repeatedly published her and her family’s personal contact information on his website and modeled the sort of vitriol he wanted them to use with his inflammatory anti-Semitic rhetoric and Nazi imagery – including images of Gersh and her son superimposed on a Nazi propaganda poster and a photo of the gates of Auschwitz. In addition, the Complaint alleges that Anglin “encouraged” his readers to: (1) call Gersh “and tell her what you think. And hey – if you’re in the area, maybe you should stop by and tell her in person what you think of her actions”; (2) leave negative reviews of her business on line; (3) take to Twitter and tell her 12 year old son “what you think of his whore mother’s vicious attack on the community of Whitefish”; (4) give Gersh’s husband “a call or stop by his office and let him know what you think of his wife’s behavior, advise him to get a leash on that hoe”; (5) contact businesses and organizations associated with Gersh; and (6) “keep putting pressure on these Jews.”

The defendants in this case didn’t go as far as Anglin allegedly did in exhorting people to unleash fury on the target victim. Still, the distinctions between their conduct and Anglin’s are nuanced. As Venkat summarized, “The court says Gersh alleges that Anglin authorized, directed, or ratified the tortious conduct of his readers, and case law authorizes liability under this framework. The court says that Anglin’s later articles stoked the fires of harassment. The complaint also alleged that Anglin provided a forum where readers would trade ideas and information for carrying out the harassment.” In light of their belated and tepid efforts to calm the audience down, does this description fit the defendants here? (Note: the Gersh court also held that the real estate dealings weren’t matters of public concern, so perhaps it was less inclined to defend Anglin’s conduct for that reason).

The court also notes that some of the complained-about content came from third parties:

much of Defendants’ speech, particularly the speech with which the Plaintiffs take issue, involved the Defendants discussing and commenting on the speech of others. For instance, the Defendants embedded a video containing Plaintiffs’ contact information, including the Higgins’ home telephone number. Still, the video that the Defendants posted was publicly available online for any viewer to see and much of the video simply contained clips of television coverage from the Elite Eight game. Additionally, the Defendants read and commented on many fake reviews and posts about the Plaintiffs. Still, these comments were either posted on public websites and social media platforms or emailed to the Defendants by third-parties. As a result, to the extent that any of the speech or conduct alleged in the complaint is actionable under the tort claims pleaded in Plaintiffs’ complaint, it is the speech of unnamed third-parties, not the named Defendants in this action.

This raises an obvious Section 230 issue that the court doesn’t address. Maybe the defendants didn’t raise it? To the extent the broadcast aired only online or involved content posted only online, Section 230 clearly applies. However, the court indicates that the broadcast went out over the airwaves (both radio and TV), and my view is that Section 230 doesn’t apply to those broadcasts. Also, if the defendants are orally repeating listener submissions of third party content, there could be other Section 230 defects. For example, I wonder if a human speaking someone else’s content still qualifies as third party content, plus there’s a Batzel-like problem about whether the submitted content (not submitted by the authors) was intended for (re?)publication. Despite these possible ambiguities, the example the court references, the embedded online video, seems like a straightforward Section 230 application that didn’t get addressed. Of course, as the court notes, some of the direct harassers could still be liable.

The court articulates a broad view of the First Amendment:

The First Amendment provides an outlet for individuals who feel aggrieved to alleviate their anger and frustration by voicing their opinions and concerns in a public forum without fear of retribution. Here, the outcome of the Elite Eight game clearly evoked a passionate response from many fans and observers. The free speech protections of the First Amendment, within reason, allowed these individuals to express their frustration without resorting to violence or other unlawful behavior, even if the speech was unpleasant.

The court’s attitude reminded me of the quote attributed to Bill Shankly, “Some people think football is a matter of life and death. I assure you, it’s much more serious than that.”

The court suggests, without confirming, that the Kentucky constitution might dictate the same result:

at least in most circumstances, state law tort claims that impose civil liability on a speaker expressing an opinion on or discussing a matter of public
concern in a public forum also run afoul of the free speech protections found in the Kentucky and United States Constitutions. If local ordinances limiting speech on public sidewalks are unconstitutional restrictions on free speech, then it follows that a lawsuit for invasion of privacy based on the same conduct would also impose an unconstitutional restriction on free speech. Moreover, if punishing judicial candidates for speaking on matters of public concern violates constitutionally protected free speech then surely a lawsuit for intentional infliction of emotional distress arising from the same conduct would be similarly barred.

The contrasting examples seemed like non-sequiturs to me because they are clearer examples of government impositions of speech restrictions than the private torts at issue here.

Though the court doesn’t side with the plaintiffs, he tries to empathize:

creative minds may ponder a perpetual parade of horribles and infinite slippery slope arguments as a result of this holding. This Court is sensitive to the real problem imposed by cyberbullying, especially in the age of social media. Furthermore, context, debate, and reflection may be lost with the ability to instantaneously post a video or story online or on social media. Here, there appears to be no doubt that the Plaintiffs in this action suffered genuine harm and discomfort as a result of the some of the speech alleged in the complaint. Moreover, this clash of rights necessarily requires some imposition on the right to privacy. Regardless, the holding does not necessarily render the Plaintiffs helpless.

It is crucially important to take note of what this opinion does not hold. First, this opinion does not hold that the Plaintiffs do not have an action for defamation against these Defendants. Defamation was not pleaded in the complaint and therefore defamation was not considered here. Second, this opinion does not hold that all speech on matters of public concern is protected from tort liability. Each case is unique and requires an individual review of the content, form, and context of the speech at issue. Third, this opinion does not necessarily prevent the Plaintiffs from bringing the claims pleaded in this complaint against unnamed third parties. The Plaintiffs may be able to bring claims for intentional infliction of emotional distress, invasion of privacy, and other related torts against the individuals who made threats and contacted them directly. Fourth, and finally, this opinion does not indicate that the Court condones or approves of the actions of the Defendants. Again, whether the Defendants acted badly based on general principles of common decency and journalistic ethics was not an appropriate consideration for this Court. Individuals and corporate entities are not automatically subjected to tort liability just because they act indecently or immorally.

Implications 

First Amendment Defense on a Motion to Dismiss. The opinion correctly acknowledged the constitutional avoidance principle, which says that First Amendment defenses should be the last option considered by judges. The opinion explains why the judge thinks there are no other better doctrines to consider, and thus it proceeds to grant a First Amendment defense on a motion to dismiss, i.e., without any discovery or development of facts. I won’t say this is unprecedented, but it’s rare to see a judge apply the First Amendment so confidently on a motion to dismiss across so many different legal doctrines. This is one of the many reasons why Section 230 plays an important complementary role to the First Amendment–it provides judges with a handy way to achieve this result while respecting constitutional avoidance.

What Happened to Actual Malice? The court makes a partially persuasive argument that the lawsuit addressed speech about matters of public concern. Surely some of the discussion met that standard, but other parts of the speech at issue (the fake reviews, perhaps) have a tough time satisfying that standard. But after analyzing the “matter of public concern” topic, the court’s analysis stops. In the conclusion, the court flatly says “speech on matters of public concern in a public place is entitled to special First Amendment protection.” Normally, that’s a necessary but insufficient step in the First Amendment analysis. If the speech involves a matter of public concern, the court normally then requires the plaintiffs to show actual malice to establish liability. However, the court didn’t analyze actual malice at all. The term “actual malice” appears only twice in the opinion, one of which is an acknowledgement that the complaint alleged the defendants had it. Shouldn’t that get some consideration on a motion to dismiss?

This undermines the court’s suggestion that defamation could have been a different story. If the court doesn’t think actual malice needs to be discussed, then why wouldn’t the defamation claim be lumped with the other claims that the court resolves in bulk with the “matter of public concern” analysis?

Would a Different Venue Reach a Different Result? The plaintiffs brought the lawsuit in Nebraska, but the defendants successfully transferred it to the Eastern District of Kentucky. The case landed on the desk of Senior Judge Hood, who is based in Lexington (where UK is located) and has a BS and JD from University of Kentucky. Surely, the judge is very familiar with how his local community felt about the loss. From my outsider’s perspective, once venue transferred to the Eastern District of Kentucky, the case probably became unwinnable. I assume the plaintiffs are going to appeal this ruling. They are probably anxious to “play” outside of the University of Kentucky’s home court.

The Zeran Analogy. This case has obvious parallels to the seminal Section 230 case Zeran v. AOL. As you know, in the aftermath of the Oklahoma City bombing, Zeran was the subject of a vicious cyberattack on an AOL message board. A local OKC radio station stirred the community’s anger by repeating the fake online messages and telling them to “call Ken” over the air, which led to Zeran getting death threats. AOL defeated Zeran’s lawsuit on Section 230 grounds; the radio station defeated Zeran’s defamation lawsuit on its elements (referring to “Ken” in Seattle wasn’t enough to identify Ken Zeran to an OKC audience). Similarly, in this case, the radio broadcasters drew from online content to fire up their listeners to direct their ire towards Higgins; and once again, the plaintiffs walk out of court empty-handed. (Also similar: the Moreno v. Hanford Sentinel saga, which also resulted in the plaintiff walking out of court empty-handed).

I’m not sure I can draw any brilliant insights from the parallels to Zeran, but it’s a reminder of how much–or little–things have changed on the Internet over the past quarter-century. Cybermobbing is still a thing; people still are inspired by Internet content to do stupid/illegal things offline; and individual cybermob participants routinely avoid accountability.

For those who blame Section 230 for that lack of accountability, note that this case turned on the First Amendment. Accordingly, changes to Section 230 wouldn’t change the result. For more on this 230/First Amendment interplay, see my new article, “Why Section 230 Is Better Than the First Amendment.”

Case citation: Higgins v. Kentucky Sports Radio, LLC, 2019 WL 1290870 (E.D. Ky. March 20, 2019)