951 F.3d 728
6th Cir.2020Background
- John Higgins, an NCAA referee, officiated a 2017 Elite Eight game that Kentucky lost; coach and fans publicly criticized his calls.
- An online video identified Higgins’ roofing business (Weatherguard Roofing, "rooferees.com"); fans began coordinated negative reviews, calls, and threats that crashed voicemail and damaged the business’s reputation.
- Kentucky Sports Radio (KSR) hosts Matthew Jones and writer Drew Franklin discussed Higgins’ officiating and his roofing business on-air and online; they sometimes reproduced abusive comments but also made statements discouraging harassment.
- Higgins sued KSR, Jones, and Franklin alleging intentional infliction of emotional distress, invasion of privacy, tortious interference, civil conspiracy, negligence, harassment, and related claims based on the post-game coverage and ensuing harassment.
- The district court dismissed the complaint on First Amendment grounds; the Sixth Circuit affirmed, holding KSR’s speech concerned a public matter and did not fall within unprotected exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether KSR's coverage involves a matter of public concern | Higgins: discussion of his private roofing business is a private matter, not public concern | KSR: officiating and fan reaction to a major college sports event are matters of public concern | Held: Speech concerned public matters (sports officiating and fan reaction) and is protected |
| Whether KSR's speech constituted incitement to lawless action | Higgins: KSR’s coverage and reproduction of abusive comments incited and intended harassment of his business | KSR: No specific or imminent call to unlawful action; hosts repeatedly discouraged harassment | Held: Brandenburg standard not met; no incitement; speech protected |
| Whether KSR is liable for defamation or a conspiracy-to-defame | Higgins: KSR conspired to defame by repeating false reviews and accusations | KSR: Any repeating of user content is protected; if treated as defamation, First Amendment requires actual malice for public figures | Held: Higgins did not plead actual malice; conspiracy-to-defame theory fails; First Amendment bars recovery |
| Whether other tort claims (IIED, tortious interference, privacy, harassment) survive | Higgins: claims arise from KSR’s reporting and conduct | KSR: Speech about public affairs is protected; First Amendment precludes these tort claims here | Held: Dismissal affirmed; First Amendment protection applies to the asserted torts |
Key Cases Cited
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (First Amendment protects speech on matters of public interest, even if offensive)
- Snyder v. Phelps, 562 U.S. 443 (2011) (public concern test protects protest speech touching public issues)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement requires speech directed to and likely to produce imminent lawless action)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public-figure defamation requires actual malice)
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (private-interest speech may lack First Amendment protection)
- Connick v. Myers, 461 U.S. 138 (1983) (content, form, and context guide public vs. private concern analysis)
- Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018) (speech that may encourage unlawful acts still fails Brandenburg without specific, imminent call to action)
- Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015) (en banc) (elements for incitement under Brandenburg)