NCAA Ref Can’t Sue Radio Station Over March Madness Harassment

The First Amendment bars an NCAA basketball referee’s claims that Kentucky Sports Radio’s 2017 March Madness coverage contributed to fans’ harassment of him and damaged his roofing business, the Sixth Circuit said.

The station’s free speech rights protected not only its negative reporting about the referee’s game calls, but also its later coverage of fans’ threats to to his family and their targeting of his business through negative online reviews and other means, the appeals court said. The coverage sometimes made light of the harassment.

John Higgins officiated an Elite Eight nailbiter between the Kentucky Wildcats and the North Carolina Tar Heels, which the Tar Heels won on a buzzer-beater. Wildcats coach John Calipari was vocally critical of the referees’ performance in the game, as were Matthew Jones, a popular talk show host on Kentucky Sports Radio, and Drew Franklin, a writer for the company’s website. In post-game coverage, Jones and Franklin criticized Higgins’ performance in particular, and Jones noted that Higgins had been involved in some of Kentucky’s most painful losses.

“Devoted sports fans are not known for their evenhandedness in judging referees,” the U.S. Court of Appeals for the Sixth Circuit noted. Kentucky fans discovered that Higgins owned Weatherguard Roofing and began posting negative reviews online, crashing the company’s phone system, filing false requests for service, and even threatening Higgins and his family. Jones and Franklin reported on this trolling campaign, sometimes indicating they thought it was funny and sometimes saying fans shouldn’t participate.

Higgins, his wife, and Weatherguard sued Jones, Franklin, and Kentucky Sports Radio, alleging intentional infliction of emotional distress, invasion of privacy, tortious interference with a business relationship, and civil conspiracy. But the First Amendment shields the defendants from liability, the Sixth Circuit said.

The First Amendment presumptively shields commentary on matters of public concern, the court noted. The officiating of a high-profile sports game between major public universities qualifies, the court said.

“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,” the court added.

It rejected Higgins’ argument that KSR’s coverage fell within First Amendment exceptions for incitement to lawlessness or defamation. Although KSR “did more to fan the flames of discontent than to extinguish them,” it never actually advocated for the harassment of Higgins, the court said. And Higgins failed to show that the station acted with actual malice in the form of knowingly making false statements or acting with reckless disregard to the truth of its statements, the court added.

The opinion was written by Judge Jeffrey Sutton and joined by Judges John Bush and Chad Readler.

The plaintiffs are represented by Dressman Benzinger LaVelle PSC and Kutak Rock LLP. The defendants are represented by Frost Brown Todd LLP.

The case is Higgins v. Kentucky Sports Radio LLC, 6th Cir., No. 19-05409, 2/27/20.