By John E. Tyrrell, Esq. and Michael E. Rosenthal, Esq., of Ricci Tyrrell Johnson & Grey
In the ever-evolving realm of sports and entertainment, stadiums emerge as modern coliseums, where athletes showcase their grit, and fans ignite in a fervent symphony of cheers and boos alike. Amidst this competitive atmosphere, the First Amendment serves as both referee and cheerleader, balancing the intricate dichotomy between freedom of expression and the obligations of venue governance. This clash was illustrated in front of the Court of Appeals of Utah in Keisel v. Westbrook, 2023 UT App 163 (UT App. 2023), where a fan’s comments to NBA Superstar Russell Westbrook sparked a national conversation on the boundaries of fan behavior and players’ rights.
The Utah Jazz was playing the Oklahoma City Thunder in March of 2019. Id., at ¶ 5. Shane Keisel, a Jazz fan, was sitting with his girlfriend a few rows up from courtside. Id. Midway through the second quarter, Westbrook, the Thunder’s point guard, had a verbal altercation with Mr. Keisel. Although some of the exchange was captured on video, much of what was actually said is still up for debate. Id., at¶¶ 6-9What was clear was this was not a “family-friendly” discussion, part of which involved Mr. Keisel telling Westbrook to “get on his knees.” Id. When Westbrook was askedabout the altercation in a post-game interview, Westbrook said that he thought Keisel’s initial comment to him was “racial.” Id.
The Jazz General Counsel quickly investigated the altercation, determined that Keisel had violated a code of conduct that governed fan behavior, and banned Keisel from attending its home games for life. Id. Before the next home game, then-owner Gail Miller addressed the crowd and said, among other things, “We are not a racist community.” Id., ¶¶ 6-9.
In December 2019, Keisel and Huff (his girlfriend in attendance with him) filed a civil complaint against both Westbrook and the Jazz (collectively, “defendants”), asserting causes of action for defamation, false light, intentional infliction of emotional distress, and negligent infliction of emotional distress. For the purposes of this article, we will focus on his defamation claim. In brief, the relevant claims alleged:[1]
- defamation against Westbrook based on his post-game statement in which he either expressly said or “implied” that Keisel “had made statements that were racist . . . in nature;”
- defamation against the Jazz based on their press releases and public statements that implied that “the alleged offensive behavior was racism or racist commentary”…
Id., ¶ 22.
Defamation Against Westbrook and the Jazz
Keisel’s defamation claim against Westbrook was based on Westbrook’s post-game statement, wherein Westbrook stated that what Keisel had said to him was “completely disrespectful” and he thought it was “racial.” Id., ¶ 32. His claim against the Jazz mostly implicated the statements Miller made before the March 14 home game. Although Miller did not identify Keisel by name, Keisel argued she defamed him by suggesting that he had said something racist to Westbrook at the earlier game. Id., ¶ 57.
“Under Utah law, a statement is defamatory if it impeaches an individual’s honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt, or ridicule.” West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). To state a claim for defamation,” a plaintiff must therefore “show that defendants published the statement concerning him, that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage.” Id., at 1007-08 (quotation simplified) (emphasis added).
As noted, one of the elements of a defamation claim is that the statement at issue must be “false.” Id. at 1007. By extension, a statement can only be actionable as defamation if it is capable of being proven to be true or false. Id. And by further extension, a plaintiff is “definitionally unable” to satisfy this falsity element “with regard to statements of pure opinion, because such statements are incapable of being verified and therefore cannot serve as the basis for defamation liability.” Id. (quotation simplified). “Because expressions of pure opinion fuel the marketplace of ideas and because such expressions are incapableof being verified, they cannot serve as the basis for defamation liability,” Id. at 1015. The First Amendment to the United States Constitution likewise protects statements of opinion, and this protection is even more pronounced in matters of public concern. See, e.g., Snyder v. Phelps, 562 U.S. 443, 452-53, (2011) (noting that speech is a matter of public concern if it is “fairly considered as relating to any matter of political, social, or other concern to the community” and that for matters of public concern, courts should “accord broad protection to speech to ensure that courts themselves do not become inadvertent censors” (quotation simplified)).
Defendants moved for summary judgment, which the trial court granted. The court reasoned: (1) “no hearer could have reasonably understood [Westbrook’s] statement to be directed at Keisel [close quote] and (2) Westbrook’s post-game statement was a constitutionally protected statement of opinion. Id. On appeal the Utah Court of Appeals noted that the summary judgment standard applied differently to a defamation claim, “primarily because it never arrives at court without its companion and antagonist, the First Amendment, in tow.” Id., ¶ 35. In other words, when reviewing the record, the court does not give the nonmoving party the benefit of the doubt in a factual dispute, as it would under most any other civil case. Id.
The determination of whether a particular statement qualifies as an opinion thus presents a question of law for the court to decide. The Appellate Court noted it need not resolve the first rationale for the trial court’s grant of summary judgment, i.e., how the reasonable “hearer” would interpret the comment, because Westbrook’s post-game statement was a constitutionally protected statement of opinion. Id., ¶ 34.
Before this lawsuit, no Utah appellate case had ruled on whether calling someone racist was actionable in a defamation case; however, in support of its conclusion that it was not, the Court looked to neighboring jurisdictions which have concluded that calling someone a racist cannot be actionable under a theory of defamation because it is an opinion. Keisel, at ¶ 38. This is so because the statement cannot be verified as being true or false as a matter of fact. With most “bright line” rules like this, there are of course exceptions. The Court quickly qualified its holding to note that an allegation of racism can, in certain contexts, be defamatory. Id., ¶ 39; See, e.g., La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir. 2020) (holding that “accusations of concrete, wrongful conduct are actionable[,] while general statements charging a person with being racist, unfair, or unjust are not.” (quotation simplified).
As a result, the Appellate Court concluded that, regarding the defamation claim against Westbrook, although Westbrook opinedthat particular statements were “racial” in nature (as opposed to directing that kind of assessment at Keisel more generally), his opinion still enjoyed constitutional protection. Id., ¶ 42. In his post-game comments, Westbrook referred to “people”, in the plural, as opposed to any one person such as Keisel. Id., ¶ 48. In short, Westbrook’s post-game statement “I think it’s racial” was protectable opinion Id., ¶ 52.
Likewise, the statements made by Miller during the next game were constitutionally protected opinions. Id., ¶ 58. For the same reasons and logic applied to Westbrook, Miller’s statement, “We are not a racist community,” was a general statement of pure opinion and “incapable of being verified…” Id. Moreover, it was not directed specifically at Keisel.
Discussion
This case provides three interesting takeaways.
First, establishing a theory of defamation against a professional athlete or stadium is a high burden. The summary judgment standard in Utah is different in a defamation lawsuit, namely that the court will not resolve factual disputes in the non-movant’s favor. Therefore, the Court did not review the record in the light most favorable to Keisel, who was the non-moving party.
Second, courts tend to align their reasoning with other federal courts which have held, generally, that calling or implying someone is “racist”, alone, is not enough to satisfy the first element of a defamation claim (I.e. that the statement is false). Calling someone racist is an opinion, and thus cannot be proven true or false based off mere words or ambiguous circumstances.
Third, due process issues affecting public entities do not apply to privately owned stadiums. While technically they are open to the public, stadiums are allowed to promulgate their own procedures and protocols for dealing with unruly or rowdy fans. Thus, they are free to kick or ban a fan from the stadium if they find he or she violated their policies or codes of conduct.
[1] Given the other claims arose from the same alleged facts as the defamation claim, the Utah Court of Appeals held that none of the same alleged facts supported claims of false light and/or negligent and intentional emotional distress.
