Radio Hosts Aren’t Liable for Online Attacks Against Beleaguered Referee–Higgins v. Kentucky Sports Radio

Where they said “ridiculous,” maybe they meant “tortious”

The case relates to the University of Kentucky men’s basketball team’s 2017 season-ending loss at the hands of University of North Carolina–a loss that many fans blamed on referee John Higgins’ officiating. UK fans unleashed their fury against Higgins’ day job, a business with the bad pun name of “Rooferees.” Matt Jones and Drew Franklin of the Kentucky Sports Radio show also let Higgins have it. Both reported on the fans’ online attacks against Higgins (including verbatim repeating the attack messages), but each time they (nominally) discouraged fans from participating in the attacks. Still, their repeated reporting might have normalized the online attacks despite their ostensibly cautionary qualifiers. The cumulative effects of the attack materially diminished Higgins’ business and life.

Higgins sued Jones, Franklin, and KSR for intentional infliction of emotional distress, invasion of privacy, tortious interference with a business relationship, civil conspiracy, negligence, harassment, and engaging in harassing communications. The district court dismissed Higgins’ case on First Amendment grounds, in an opinion that had a distinctly “boys will be boys” vibe to it. The Sixth Circuit adopts a similarly blase attitude about sports fans’ attacks. Some example quotes:

• “Devoted sports fans are not known for their evenhandedness in judging referees.”
• “fans have every right to read about, and discuss, the ‘manner’ in which the referees called the game…Criticizing umpires serves other purposes, perhaps even healthy ones. It allows fans to suppress two unwelcome thoughts: that their team deserved to lose or that a lot of chance drives the fortunes of a team in a single-elimination tournament. How much better, after a dispiriting end-of-season loss, to be consoled by the thought that your team was robbed”
• “the commentators did not attack the business in its own right; they discussed it in the context of their general issues with Higgins, which concerned ‘the way [he] called the game.’…He 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.” [This sure starts to sound like victim-blaming…]
• “While the announcers at Kentucky Sports Radio do not merit prizes for sensitivity and restraint, they did make at least six statements that discouraged the fans’ conduct”

* * *

As a threshold consideration for First Amendment protection, the court establishes that the defendants’ discussion involved a matter of public concern:

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 reactions to them may have been the biggest story of the news cycle. 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.”

Once that was established, the court tries to fit the claims into one of two existing First Amendment exceptions:

Incitement to Imminent Lawlessness. “Higgins has not identified any statement made by the defendants, explicitly or implicitly, that fans should attack his business….[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.”

The court also makes some awful comparisons to a case involving Pres. Trump’s remarks at one of his rallies. The court’s discussion merely reiterates how our president’s behavior has helped degrade the discourse level in our society and normalized anti-social behavior. The court explains how the defendants sufficiently disclaimed their endorsement of bad behavior:

Higgins adds that, even if the members of Kentucky Sports Radio technically said the right things, they nevertheless encouraged his harassment by dogwhistling to their fans, telling them to leave him alone only with a wink and a nod. It may be that pervasive sarcasm could transform innocent speech into incitement. Say a speaker provided step-by-step instructions encouraging lawlessness, each preceded with a sardonic “not.” For instance: “I do not want you to visit Higgins’ Facebook page, I do not want you to leave a one-star review, I do not want you to do all that as soon as you get off work, and I do not want you to tie up his phone lines.” But that doesn’t describe this case. Kentucky Sports Radio did not advocate for Higgins’ harassment. Nor did its disavowal of the fans’ conduct smack of irony—usually. Yes, it did a poor job dissuading listeners from mischief. But a party cannot be sued for incitement merely because it failed to condemn the behavior of others with sufficient firmness or clarity…

Kentucky Sports Radio knew, or surely should have known, the volatility of the situation. One can cover a gasoline spill without adding needless sparks. Even with the platform to make a difference, the station did more to fan the flames of discontent than to extinguish them. The Constitution protects that choice. A conscience must do the rest.

Especially in our Trumpian environment, “consciences” are increasingly scarce and incivil interactions are common. This court suggests c’est la vie.

Defamation. The defendants don’t have the requisite actual 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 a tendentious Twitter exchange could land its author in front of a jury. That would make the authors of the First Amendment cringe

This might be an implicit endorsement of the controversial “neutral reportage” doctrine in defamation.

Just a reminder that the court immunized the radio show hosts using the First Amendment, not Section 230. That’s a good result for the First Amendment and defendants generally, but it’s not something defendants can categorically rely upon.

The court summarizes:

Perceived missteps in the public eye these days all too often unleash torrents of anonymous online hate. One can hardly blame the victim of such onslaughts for wanting redress. Or blame him for taking aim at the only members of the mob with faces: pundits like Jones and like Franklin who at times took too much glee in reporting on the misery of others. But 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. Those who step into the public limelight, even temporarily, must face the hazard that sometimes comes with it. Should they find a commentator’s discussion of their foray into public life unsavory, they cannot easily “cry ‘Foul!’”

Implications

From a First Amendment standpoint, this is a good ruling. The First Amendment plays its most critical role when it applies to speakers or speech that I personally do not champion. It also provides substantial breathing room for reporting on important social issues, even if that includes repeating allegedly defamatory third-party statements.

I recognize that this ruling took place in the sports context, where the boundaries of a “game” can extend quite far to excuse behavior that would be tortious outside the “game.” Still, I wonder how other sports referees feel about this ruling. Do they get paid enough to referee to make up for the potential costs to the rest of their lives if rabid fans go nuts? If the compensation isn’t that, how can they rationalize their willingness to put their economic well-being on the line–and the well-being of their family too?

This case bears some parallels to the Zeran v. AOL case from a quarter-century ago. In that case, radio announcers also repeated the substance of online attacks. However, unlike the defendants in this case, the radio announcers encouraged listeners to call Zeran and give him a piece of their minds. Yet, in both cases, the radio announcer defendants won.

Finally, I reiterate that proponents who see Section 230 reform as a way of curbing anti-social interactions are almost certainly misdirecting their ire. Gutting Section 230 wouldn’t change this case’s outcome; it would just gut 230. For better or worse, the First Amendment protects people being horrible to each other.

Case citation: Higgins v. Kentucky Sports Radio, LLC, 2020 WL 939203 (6th Cir. Feb. 27, 2020)