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Higgins v. Kentucky Sports Radio LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

March 20, 2019

JOHN M. HIGGINS, et al., Plaintiffs,
v.
KENTUCKY SPORTS RADIO, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hoo, Senior U.S. District Judge

         This case presents a familiar situation where some sports fanatics overreacted about the outcome of a basketball game. In this instance, some fans and observers of the 2017 March Madness Elite Eight basketball game involving the University of Kentucky and University of North Carolina men's college basketball teams were upset about the outcome of the game. Whether deserved or not, much of the anger and blame was eventually directed at John Higgins, a well-known NCAA college basketball official and one of the officials on the three-person officiating crew for the 2017 Elite Eight game between Kentucky and North Carolina.

         But post-game gripes and snarky remarks that were initially innocent enough quickly turned into something more sinister and unfortunate. Some angry fans and observers incessantly contacted the Plaintiffs directly, resulting in thousands of calls to Mr. Higgins's home and business within a span of a few days. Additionally, many individuals posted false reviews of Mr. Higgins's business online and posted reviews about Higgins on social media ranging from satirical to nasty. And they piled on, some individuals even contacted Mr. Higgins's family and made death threats.

         Understandably feeling aggrieved, the Plaintiffs pointed their fingers squarely at the Defendants in this action, including Kentucky Sports Radio, a company primarily devoted to coverage of University of Kentucky sports. In the days after the game, Kentucky Sports Radio, Matt Jones, and Drew Franklin relentlessly discussed the officiating in the Elite Eight game, including publicizing their perception that Mr. Higgins was at least partially responsible for Kentucky's loss. Additionally, the Defendants discussed the Higgins' business and read and posted reviews and comments from angry fans on various media platforms.

         In response, the Plaintiffs assert that the Defendants indirectly recruited an army of willing and upset fans to attack the Plaintiffs, in retribution for Mr. Higgins's role in officiating the Elite Eight contest. Moreover, the Plaintiffs question the journalistic integrity of the Defendants and contend that any efforts of the Defendants to call off the onslaught of angry fans was disingenuous at best.

         Still, while 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. 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 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. As a result, the Plaintiffs may not recover on the claims pleaded in the amended complaint and the claims must be DISMISSED WITH PREJUDICE.

         I. Procedural and Factual Background

          While the parties frame the facts differently, the relevant facts in this action are mostly undisputed. Plaintiff John Higgins is a well-known National Collegiate Athletic Association (“NCAA”) basketball official. Mr. Higgins is also President and co-owner of a company called Weatherguard, a commercial and residential roofing, siding, and gutter contractor. [DE 55, Amended Complaint at 2, Pg ID 585]. Carol Higgins is co-owner, vice-president, secretary, and treasurer of Weatherguard. [Id.].

         Defendant Kentucky Sports Radio (“KSR”) is a limited liability company organized under the laws of the Commonwealth of Kentucky. Defendant Matt Jones is the founder, organizer, and a member of KSR. Jones hosts a radio program on KSR and maintains a blog on the KSR website. KSR programming, which generally contains coverage of University of Kentucky sports, especially men's basketball and football, is broadcast to more than forty affiliate radio stations in Kentucky and is available online through streaming platforms and podcasts. Defendant Drew Franklin is also a frequent contributor on KSR programs and the KSR website.

         A. Post-Game Reaction and Commentary

         On March 26, 2017, Mr. Higgins was part of a three-person officiating crew for an NCAA tournament “Elite Eight” game between the University of Kentucky and University of North Carolina men's basketball teams. [Id. at 3, Pg ID 586]. Kentucky lost the game. After the game, some observers, including many University of Kentucky basketball fans, criticized Mr. Higgins's officiating.

         For instance, KSR host Matt Jones disparaged Higgins during the UK Post-Game Show after the Elite Eight game. Jones stated,

I do think the officiating the first half was putrid. And John Higgins has been a part of some of Kentucky's most painful losses. And I can tell you, I was sitting behind . . . [the] UK bench for the first half, . . . and [Kentucky Coach John Calipari] was not a happy camper with Higgins, . . . I get the feeling that that is not one of his favorite people and, you know, you heard in the postgame press conference, Cal said he thought they kind of got jobbed [sic] in the officiating . . . .[1]

[Id. at 4, Pg ID 587].

         The next day, on March 27, 2017, an unknown individual created a video titled “John Higgins [sic] Sabotage of Kentucky” and uploaded the video to the video sharing platform, vimeo.com. [Id.]. The video showed footage of the Elite Eight game with overlaid commentary from UK Sports Radio announcers discussing and criticizing the officiating during the game. [Id.]. The video ended with a photo of Higgins standing next to a Weatherguard truck. [Id.]. Written alongside the photo were Weatherguard's telephone number, Weatherguard's website URL, the Higgins' home telephone number, and the following message, “Write a review of him here http://www.facebook.com/rooferees.” [Id.].

         Moreover, on March 27, Jones frequently discussed Higgins's officiating performance in the Elite Eight game on the KSR radio program. Jones read emails from listeners, including one from “Anthony” stating, “I'm thinking of leaving a bad review on John Higgins's roofing Yelp page.” [Id.]. Jones also noted that people had been publicly posting Higgins's business card online. Still, Jones claims that he told viewers not to get into the officials' private lives and discouraged listeners from contacting Higgins and his business. [DE 29, Answer at 6, Pg ID 203].

         Later in the radio broadcast, Jones read another email from an unknown listener that said, “I was against trolling John Higgins. Then I went and saw the name of his roofing company.” [DE 55 at 5, Pg ID 588]. In response to the email, Jones said, “Oh my goodness, you know what his roofing company['s] name is? . . . Rooferees . . . Seriously. The name of his company is rooferees.com.” [Id.]. Then, Jones proceeded to spell the name of the company's website address on the KSR radio broadcast, stating, “R-O-O-F-E-R-E-E-S.com. Rooferees.” [Id.]. Finally, Jones ended the conversation by saying, “Now I still don't think you should troll the guy but now I have less sympathy if his [company's] name is Rooferees.” [Id.].

         Additionally, several articles were posted on the KSR website on March 27, 2017. One of the articles, written by Drew Franklin, was titled “No more John Higgins please.” Drew Franklin, No more John Higgins please., Kentucky Sports Radio, Mar. 27, 2017, http://kentuckysportsradio.com/basketball-2/no-more-john-higgins-please/. A photo of Higgins was included below the article's title. The photo included the international prohibition sign over Higgins's face and text that said, “NO MORE HIGGINS.” [See DE 55 at 5, Pg ID 588].

         Franklin's article began by saying, “John Higgins is terrible at his job.” Then, after additional commentary, the article included screenshots of tweets from former Kentucky and NBA player Rex Chapman, national sports columnist Dan Wolken, ESPN television analyst Jay Williams, and former Kentucky and current NBA basketball player Karl Anthony Towns. All the tweets were critical of the officiating in the Elite Eight game and some named Higgins explicitly. Furthermore, the article included video clips of perceived bad calls by the officiating crew in the Elite Eight game and more commentary, including a statement that said, “Higgins' whistle didn't help UK's chances, but the blame doesn't fall on the guys in stripes.” Id. Franklin also said, “Blaming officials is never the way to go. But we can be critical of them, which is what I am doing right now.” Id.

         Unsurprisingly, many readers responded in the comment section below the article on KSR's website. For instance, one person wrote, “http://www.rooferees.com/about-us/ Can we get a gofundme to put this guy on blast in Omaha?” Another commenter stated that he put a link to Franklin's article on Higgins's website, rooferees.com. Moreover, one of the commenters posted a link to the vimeo link of the “John Higgins [sic] Sabotage of Kentucky” video. Still, a handful of commenters discouraged blaming the officials for the result of the game or discussed Kentucky's performance in the game more generally.

         The next day, March 28, 2017, Franklin posted another article on the KSR website. Drew Franklin, Barleycorn's Tuesday Top 10, Kentucky Sports Radio, Mar. 28, 2017, http://kentuckysportsradio.com/main/barleycorns-top-10/. Near the end of the top ten, Franklin said, “8. John Higgin's [sic] business is getting CRUSHED on its Facebook page .” Id. (emphasis in original). Franklin said, “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.” Id. Franklin's next topic was titled “9. Someone made a video package with all of Higgins' bad calls from the game.Id. (emphasis in original). Franklin then said, “If you can stand to watch it, here you go . . ., ” and included an embedded link to the “John Higgins [sic] Sabotage of Kentucky” video.[2] Id.

         Again, Franklin's article elicited numerous comments from readers. Some commenters seemed to revel in the personal attacks on Higgins and his business while other commenters indicated that they found the personal attacks abhorrent.

         Around an hour after posting the second article, Franklin posted a third article. Drew Franklin, Talkin' Higgins, a new basketball target and more (Tuesday Show Thread), Kentucky Sports Radio, Mar. 28, 2017, http://kentuckysportsradio.com/main/talkin-higgins-a-new-basketball-target-and-more-tuesday-show-thread/. Franklin's article said, “It's a busy day on KSR as Matt and Ryan . . . continue the hatred for John Higgins. They'll have that and more on two hours of Tuesday morning KSR. Join in on the fun by calling (502) 571-1080.Id. (emphasis in original). Below the article text, Franklin included a link to the iHeartRadio stream that would allow readers to listen to KSR and included a list of affiliate radio stations across Kentucky that air the KSR radio program. Id.

         Then, a couple minutes later, Franklin posted another article. Drew Franklin, Kentucky fans are really lighting up John Higgins' roofing business, Kentucky Sports Radio, Mar. 28, 2017, http://kentuckysportsradio.com/basketball-2/kentucky-fans-are-really-lighting-up-john-higgins-roofing-business/. Franklin's article began by saying: “We here at Kentucky-Sports-Radio-dotcom 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 page.” Id. (emphasis in original). The article proceeded by posting screenshots of posts on the Weatherguard Facebook page discussing John Higgins and his officiating in the Elite Eight game. Id. Some of the Facebook posts reproduced in Franklin's article contain particularly foul commentary and direct attacks. Franklin ended the article by saying, “Okay, but seriously, Big Blue Nation: maybe stop doing this. It's not a good look for us, especially the handful of comments wishing death. Let's chill just a little bit. You can make fun of him all you want here, and we will.” Id.

         That same day, on March 28, 2017, Jones began the KSR radio program by discussing Weatherguard's Facebook page. Jones stated that he did not advocate the Facebook postings, but said, “it doesn't mean it's not funny.” Additionally, Jones claimed that he did not prompt the Facebook posts, saying, “you cannot blame this on KSR. . . . Well, maybe you can because I told you he was a roofer.” Then, Jones claims that he implored his listeners to stop attacking Mr. Higgins's personal business.

         Next, Jones proceeded to read several of the Facebook posts on the KSR radio program. Later, Jones said, “I can't stop reading these John Higgins reviews, ” and, “It looks like ten of them are five stars, and all the rest of them are one star.” Jones read more Facebook posts and said he believed that fans were so upset that they had no other way to express their frustration. Additionally, Jones stated that he thought Higgins opened himself up to the comments by linking his work as an official to his company by naming his Facebook page “Rooferees.” Furthermore, Jones acknowledged that some fans had called or tweeted saying that they had called Weatherguard. Jones said that these calls were funny but then advised fans not to call Weatherguard. Finally, Jones ended the radio program by speculating on whether Higgins had gambled on the Elite Eight game and purposefully threw the game to North Carolina.

         Shortly after the March 28 radio program, Franklin posted a fourth article, titled “Call John Higgins' business and you get the FBI (or someone pretending to be FBI).” Drew Franklin, Call John Higgins' business and you get the FBI (or someone pretending to be FBI), Kentucky Sports Radio, Mar. 28, 2017, http://kentuckysportsradio.com/basketball-2/call-john-higgins-business-and-you-get-the-fbi/. Franklin began the article by saying, “It's really time to chill, BBN. Things have gotten so out of control that if you call John Higgins' roofing business, you will be greeted by the FBI.Id. (emphasis in original). Then, Franklin said that he had called the Weatherguard telephone number and someone answered the call by saying “Federal Bureau of Investigation.” Id. Franklin concluded by saying that Higgins's officiating performance “sucked, ” but that “the threats against [Higgins] and his business [were] way out of line.” Id.

         Lastly, in the evening on March 28th, John Higgins was a topic of discussion on the “Hey Kentucky” television program. The title of the Hey Kentucky episode was “Higgins Pooped on my Roof” and the segment about Higgins was called “Higgins Haters.” During the television program, Jones discussed the comments on the Weatherguard Facebook page with local television personality and stand-up comedian Lee Cruse. Jones and Cruse laughed about the comments on the Weatherguard page and Jones said, “We've made our point, let's move on.”

         B. Damages Suffered by Weatherguard and the Higgins Family

         According to the Plaintiffs, Weatherguard received over 3, 000 telephone calls in the two days following the game. Higgins reported that seventy-five percent of the telephone calls originated from Kentucky area codes. These calls continued nonstop for weeks, keeping legitimate Weatherguard customers from reaching the business.

         Additionally, Weatherguard's Google star rating went from 4.8 out of 5 to 1.2 out of 5 after the Elite Eight game. The Plaintiffs claim that 181 false reviews were identified on Google. Making matters worse, Google business searches are impacted by a company's star rating. Thus, the bogus reviews from angered fans affected potential customers' ability to locate Weatherguard.

         Furthermore, some individuals filed false reports against Weatherguard with the Better Business Bureau. Some of the false reports were easily identified by the names that were used, such as the names of former Kentucky basketball coaches. Moreover, Weatherguard's Facebook page apparently received over 700 false posts, resulting in Weatherguard removing the page from Facebook.

         Weatherguard's contact information was also provided to businesses, such as car dealerships, resulting in follow-up calls to Weatherguard. Additionally, Weatherguard received numerous telephone calls from angry fans. Weatherguard employees wasted time answering and following-up on these phone calls.

         Most disturbing, however, is that some individuals contacted the Higgins family directly with nasty comments and threats. For instance, Ms. Higgins began receiving messages pertaining to Mr. Higgins's officiating performance on her personal Facebook Messenger account. The Higgins family also received anonymous messages at their home, including death threats and other offensive voice messages. In response, the Sarpy County Sheriff and Omaha Police Department added patrols around the Higgins family home and Weatherguard employees were told to not work for several days.

         C. Procedural History of Present Lawsuit

          On October 3, 2017, the Plaintiffs filed a four-count complaint against the Defendants in the United States District Court for the District of Nebraska. [DE 1]. The complaint alleged intentional infliction of emotional distress, invasion of privacy, tortious interference with a business relationship, and civil conspiracy under Nebraska law. [Id.].

         In response, the Defendants moved to dismiss for lack of personal jurisdiction or, in the alternative, for change of venue. [DE 13]. On January 1, 2018, Defendants' motion was granted in part and denied in part. [DE 20]. As a result, this action was transferred to this Court pursuant to 28 U.S.C. § 1631. [Id.; see also DE 21].

         Subsequently, the Defendants answered the Complaint [DE 29] and then filed a motion to dismiss [DE 40]. Then, with leave of Court, the Plaintiffs filed an amended complaint, adding claims for negligence, harassment, and engaging in harassing communications, in addition to the four original tort claims, all pleaded under Kentucky law. [DE 55].

         The Defendants supplemented their motion to dismiss [DE 56]. The Plaintiffs responded in opposition to the initial and supplemental motion to dismiss. [DE 57]. Finally, the Defendants filed a ...


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