Referee Seeks Reversal of Call Dismissing Tort Claims Against Sports Radio Hosts Over Trolling Campaign

Following a bitter 75-73 loss by the University of Kentucky at the hands of the University of North Carolina in a 2017 NCAA Men's Basketball Tournament "Elite Eight" game, the familiar trope of blaming the officials reached a boiling point when angry Kentucky fans targeted one of the referees in a sustained cyberattack, or trolling campaign.

Kentucky fans laid blame for the defeat on what they considered bad officiating, including disputed calls by one of the game referees, plaintiff John Higgins ("Higgins" or "Plaintiff"). In the ensuing days, a number of fans from Big Blue Nation crashed the chat boards of the defendant, Kentucky Sports Radio, LCC ("KSR"), by phoning and emailing radio call-in shows about the game and specifically voicing their displeasure with the plaintiff's officiating. Moreover, two show hosts, Matthew Jones and Drew Franklin (the "Hosts") added their own scathing commentary about the game and Higgins' calls during post-game shows and in blog posts and articles published on KSR sites (which garnered multiple comments from fans). Beyond the X's and O's of the game, the Plaintiff alleged that the KSR Hosts also encouraged the actions of a certain group of fans who had begun an online and offline cyberattack against Higgins and his roofing business. The Plaintiff further alleged that the Hosts, in a bit of double dribble, implicitly encouraged the trolling behavior while at the same time pleading restraint for fans to be respectful.

The KSR Hosts' coverage allegedly included discussion of a video that had been circulated among several fan sites and highlighted Higgins' calls in the game and also shared Higgins' business contact information, according to plaintiff, so fans could troll Higgins' roofing business. The roofing business subsequently received a flood of one-star reviews, false complaints to the Better Business Bureau, and other negative comments that led other media outlets to cover the story. Anonymous fans also purportedly left threatening messages at his home. According to the Complaint, the entire post-game full court press against Higgins by certain anonymous fans of Big Blue Nation was damaging to the referee, his family, and his roofing business and prompted police to patrol the area surrounding his home.

In October 2017, Higgins filed claims against KSR and the Hosts for, among others, intentional infliction of emotional distress, invasion of privacy, and tortious interference with a business relationship or expectancy.

Higgins claimed that KSR and the Hosts indirectly recruited an army of willing and upset fans to launch an attack against himself and his business in retribution for the officiating in the Elite Eight game. While the referee admitted that the Hosts told their listeners not to contact or troll the referee, Higgins claimed that such efforts to box out the onslaught of angry fans were disingenuous at best, especially since Higgins claimed the Hosts had already stoked their listeners' ire. In short, the referee sought to impose tort liability on KSR and its Hosts for the content of their broadcast and online reporting relating to his game calls and the viral internet storm that resulted in the negative reviews, threats and invasion of privacy. In their defense, KSR and the Hosts contended that their post-game criticism of Higgins was protected speech under the First Amendment and that any claims related to it were barred.

In March 2019, a Kentucky district court dismissed the suit, ruling that the KSR radio Hosts' statements were made in a public forum and on "matters of public concern" and were therefore protected by the First Amendment (and that "general principles of common decency and journalistic ethics was not an appropriate consideration for this Court"). (Higgins v. Kentucky Sports Radio, LLC, No. 18-043 (E.D. Ky. Mar. 20, 2019)). The lower court found that if it were to hold the KSR Hosts accountable for third party actions it could possibly reduce the free flow of public debate on public events and issues. Since the court found that the KSR radio Hosts actions did not count as "incitement" of the attacks made against the referee, his wife and his business, they were therefore entitled to First Amendment protection. When the buzzer sounded, the court sympathized with the plaintiff, but ultimately held that the KSR Hosts' speech was protected: "[W]hile Plaintiffs' frustration is understandable and their damages are real, in some instances the First Amendment…provides special protection to speech on matters of public concern, even if that speech is revolting and upsetting."

Following the defeat, Higgins filed an appeal with the Sixth Circuit (Higgins v. Kentucky Sports Radio, LLC, No. 19-5409 (6th Cir. filed Apr. 22, 2019)). In June 2019, Higgins filed his appellant brief and argued that the KSR Hosts encouragement of lawless, tortious action is not protected by the First Amendment, and that even if those statements were covered by the First Amendment, the KSR Hosts personal vendetta against Higgins was not a matter of public concern, as required for greater First Amendment protection. In response, in July 2019, KSR filed its opposition brief and urged the 6th Circuit not to revive the suit, stating that it is "nothing more than an attempt to stifle protected speech." The KSR Hosts also pointed out that the referee has not sued any other media outlet that covered the events following the game at issue in 2017. Whether the lack of suit against other media outlets plays a role in the Sixth Circuit's decision remains to be seen as we wait to see whether Higgins can overturn the dismissal of his suit.