A federal judge from the Eastern District of Kentucky has dismissed the claim of a basketball official, who claimed a radio station and its announcers crossed the line when their speech led Kentucky Wildcat fans, aggrieved over a loss, to disrupt the official’s life and even make death threats.
“While the plaintiffs’ frustration is understandable and their damages are real, in some instances the First Amendment to the United States Constitution provides special protection to speech on matters of public concern, even if that speech is revolting and upsetting,” wrote the judge. “In this instance, after reviewing the entire record and considering the content, form, and context of the allegedly tortious speech, the Court has reached the conclusion that the defendants’ speech, broadcast in various forms on radio, television, and the internet, involved matters of public concern. Thus, the speech enjoys special protection and the First Amendment prevents the plaintiffs from using tort actions to silence and punish the defendants for engaging in protected speech.”
Professor Analyzes Initial Complaint
Linda A. Sharp, J.D., is the co-author of a sport law textbook entitled Sport Law: A Managerial Perspective and a former sports law professor at the University of Northern Colorado, wrote about the instant case when the complaint was filed for Sports Litigation Alert. Her analysis follows:
A recent lawsuit filed in the federal district court in Nebraska (ultimately moved to the E.D. Ky.) illustrates the high pressure, win-at-all-costs culture that exists in NCAA Division I basketball. In the case of Higgins v. Kentucky Sports Radio, a well-known NCAA basketball referee alleged that he suffered damages to himself, his family and his roofing business due to actions taken by the media company defendant and its operators. The complaint states causes of action based on: 1) intentional infliction of emotional distress; 2) invasion of privacy; 3) tortious interference with business; and 4) civil conspiracy. The complaint states that: “Death threats and defamatory messages in the thousands that lead to a serious disruption in a referee’s business are not to be expected, are tortious, and are to be met with the full force of the civil action and the penalties awarded thereunder.”
The plaintiffs are John Higgins, a well-known NCAA basketball official, who was once featured in a Sports Illustrated story. The other plaintiffs are Higgins’ wife and Higgins’ business, Weatherguard, a roofing company, located in Omaha, Neb. Prior to the incidents in issue in this lawsuit, Weatherguard was regarded as a very reputable business and had received outstanding reviews on various Internet sites.
The defendants are Kentucky Sports Radio and its operators, Matthew Jones and Drew Franklin. The media defendant Kentucky Sports Radio controls a number of media outlets including a radio call-in show with defendant Jones as host, a podcast, a website and a blog written by Jones. The website bills itself as “University of Kentucky basketball, football and recruiting news brought to you in the most ridiculous manner possible.” Defendant Franklin is also a frequent contributor to the website.
THE FACTS OF THE CASE
The legal dispute stems from events in the aftermath of an Elite Eight NCAA basketball game played on March 26, 2017. On that date the University of North Carolina played the University of Kentucky in a highly-contested game, which the Tarheels won 75-73 on a buzzer-beater shot. After that game, in which the plaintiff officiated, John Calipari, the coach of UK, was highly critical of the quality of the officiating in his postgame news conference, as he stated: “You know, it’s amazing that we were in that game where they practically fouled out my team. Amazing that we had a chance.”
Defendant Jones, in the KSR post-game show, emphasized the bad officiating theme and among other comments noted that “the officiating in the first half was putrid.” Jones also specifically targeted Higgins’ performance as poor and noted that Coach Calipari was not pleased with Higgins.
The day after the game, in the KSR radio show, Jones again resumed the diatribe against Higgins and chose to read an email from listener “Anthony” who said that he was going to leave bad reviews on the Yelp site in regard to Higgins’ roofing business, Weatherguard. A fan website had previously disclosed the name of Higgins’ business. Later in the show Jones stated that he was against “trolling” Higgins until he saw that the name of Higgins’ commercial website was “Rooferees.” Even though Jones indicated that he was against “trolling” Higgins, Jones provided his viewers with the website address of Rooferees.com.
That same day, Monday, March 27, 2017, KSR published several articles on Kentuckysportsradio.com about Higgins. For example, at 11 p.m., Franklin posted an article called, “No more John Higgins please.” After outlining what he saw as Higgins’ officiating mistakes at the game, Franklin quoted Calipari’s unfavorable comments made after the game on the preceding day.
The next day, Tuesday, March 28, 2017, at 9 a.m., Franklin posted another unfavorable article about Higgins and wrote, “John Higgins’ business is getting CRUSHED on its Facebook page. I won’t link the page because I don’t completely agree with attacking his side hustle, but, man, Big Blue Nation is destroying Higgins in the comments and reviews of the business.” Although Franklin said that he would not link the page he did link the Rooferees business webpage to the comments section of his post from the night before.
Also on March 28, 2017, at 10 a.m., Franklin posted an article called “Kentucky fans are really lighting up John Higgins’ roofing business.” The article, extensively quoted fan comments on Weatherguard’s Facebook page while pretending to condemn the same: “We here at Kentucky-Sports-Radio-dot-com do not condone the activity from Big Blue Nation on John Higgins’ roofing company’s Facebook page. But like Big Blue Nation, we are still upset over some of Higgins’ calls in the UK-UNC game, so we can and we will read the activity on the Facebook.”
This type of behavior by Jones and Franklin went on in subsequent shows and in the blog. On the one hand the KSR personnel stated that they didn’t condone the behavior by UK fans but also found it funny and encouraged that behavior to continue by reading or publishing many of the derogatory reviews.
Weatherguard received more than 3,000 phone calls during the two days after the game, of which approximately 75 percent were from Kentucky area codes. Additionally, prior to these events, Weatherguard was, according to the complaint, the top-rated roofing company on Google in the Omaha area. But as a result of the derogatory reviews, in a matter of 48 hours, Weatherguard became the lowest-rated business. Weatherguard was inundated with false, negative, one-star-out-of-five reviews, causing Weatherguard’s Google star rating to dramatically decrease, from 4.8 to 1.2. Eighty one-star ratings came in over a 24-hour period, none from the Omaha area, and most from Kentucky. Ultimately, 181 false reviews were posted. False reports were made to the Better Business Bureau. The voicemail system at Weatherguard crashed and legitimate clients could not reach the business. Due to the inordinate number of negative Facebook comments, Weatherguard’s Facebook page was inactivated, eliminating another source of legitimate business opportunities.
Higgins received threatening phone calls at his home and business as well. More than 800 threatening, vulgar, or harassing voicemail messages were received on the Weatherguard phone line. More than 30 such messages were received on the Higgins family home phone line. Higgins, his employees and his family were all allegedly frightened and upset with the nature of the violent threats made to John Higgins.
THE CAUSES OF ACTION
Higgins’ lawsuit alleged that the defendants should be liable for the following causes of action: 1) invasion of privacy; 2) intentional infliction of emotional distress; 3) tortious interference with business; and 4) civil conspiracy. Let’s address the plaintiffs’ chances of establishing liability on each of these causes of action.
Invasion of Privacy
There can be no viable cause of action based on invasion of privacy unless “private information” is disclosed. The Restatement (Second) of Torts provides protection from publication of private facts, e.g., income tax data, medical information, personal letters, etc. The information disclosed in this case (phone numbers of home and business and business website information) could have been readily found from a variety of sources on the Internet by any motivated searcher. Higgins was a well-known official with a public presence. The information disclosed by the defendants was not private information. This cause of action will likely be dismissed by the court before trial.
It is very difficult to make a viable claim based on intentional infliction of emotional distress. To avoid a flood of claims based on injury to hurt feelings, the courts have set a very high bar to succeed on this type of claim. Generally, to sustain such a claim, the conduct in question must be “so outrageous that it goes beyond the bounds of decency and utterly intolerable in a civilized society.” It is unlikely that the conduct in this case would meet that standard.
The next cause of action stated is tortious interference with business. Interference with business relations is a type of tort in which a third party intentionally acts to cause one party in a business relation to violate business relations with the other. It is sometimes called “Tortious Interference of Business” or “Interference with Prospective Contract.”
A third party may not interfere with a validly existing business relationship between two parties. In order to prove tortious interference with business relationship, most jurisdictions require that the following elements be satisfied: 1) a valid business relationship or business expectancy existed between the parties; 2) the defendant had knowledge of the relationship or expectancy; 3) the defendant intentionally coerced one of the parties to terminate the business relationship, breach a contract, or withhold a valid business expectancy; 4) the defendant was not authorized to interfere with the parties’ dealings; and 5) the defendant’s interference resulted in damages to the plaintiff.
Based on the facts alleged in this case, it seems that there are two obstacles to success for the plaintiffs on this claim. First, although there are many prospective customers of roofing customers who may have been deterred from hiring Weatherguard due to the barrage of terrible reviews, it is speculative as to who these customers might be. This may be an obstacle in showing that a business relationship or business expectancy existed. Further, the defendants did not actually “coerce” anyone to sever or withhold a business expectancy. Their conduct may have been reprehensible but may not meet the elements of this cause of action.
Lastly, the plaintiffs allege that there was a civil conspiracy. Civil conspiracy is not a cause of action per se. To have a conspiracy there has to be some unlawful behavior. If there is no tortious behavior in this case, there can be no civil conspiracy.
The world of NCAA Division I sports is a very high-stakes, win-at-all costs environment which leads to many ethical abuses. Some of these abuses are in recruiting, some in the academic environment and many abuses stem from a fanatical obsession with winning. Of course, it is only human nature to support your university athletic teams and to be upset when they lose. It is also human nature to blame the officials, who have always been convenient scapegoats. But when the media incite and condone fans’ behavior, which is malicious and hurtful, the media and the fans should be accountable in a civilized society. Unfortunately, the law does not always provide remedies for behavior of this nature and the law cannot cure all ethical failings.
The Judge’s Conclusion
“After reviewing the entire record and considering the content, form, and context of the allegedly tortious speech at issue in this case, the defendants’ speech was broadcast publicly on the radio, television, and online, and was related to matters of public concern. Thus, the speech in which the defendants engaged is entitled to special protection under the First Amendment to the United States Constitution. As a result, the tort claims alleged by the plaintiffs must be dismissed in their entirety because they constitute a forbidden intrusion on the field of free expression. To hold otherwise would pose a threat to free and robust debate of public issues.
Of course, 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 sum 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.”
“In sum, the narrow holding here is that, based on the facts pleaded in the complaint, the named defendants engaged in speech on matters of public concern on radio, television, and on the internet. Since speech on matters of public concern in a public place is entitled to special First Amendment protection, the plaintiffs have not pleaded claims upon which relief may be granted and the tort claims pleaded in the complaint must be dismissed.”
Higgins v. Ky. Sports Radio, LLC; E.D. Ky.; 2019 U.S. Dist. LEXIS 45535, Case No. 5:18-cv-043-JMH; 3/20/19
Attorneys of Record: (for plaintiffs) Carol A. Svolos, John P. Passarelli, LEAD ATTORNEYS, PRO HAC VICE, Kutak Rock LLP -NE, Omaha, NE; Danyel Rickman, LEAD ATTORNEY, PRO HAC VICE, Dressman Benzinger LaVelle P.S.C. – Crestview Hills, Crestview Hills, KY; J. Kent Wicker, LEAD ATTORNEY, Dressman Benzinger LaVelle PSC – Louisville, Louisville, KY; Kimberly M. Hare, LEAD ATTORNEY, Kutak, Rock Law Firm – IL, Chicago, IL. (for defendants) Allison Walker Weyand, Griffin Terry Sumner, LEAD ATTORNEYS, Jeremiah A. Byrne, Frost Brown Todd LLC – Louisville, Louisville, KY.