On Thursday, February 27, 2020, the Sixth Circuit affirmed dismissal of an NCAA referee's lawsuit against a Kentucky radio station for allegedly inciting harassment against him and his roofing business through its coverage of him following a playoff game. The plaintiff, John Higgins, refereed an Elite Eight matchup between the Kentucky Wildcats and the North Carolina Tar Heels during the NCAA Basketball Tournament in 2017. The game was close, and the Tar Heels won after scoring with less than one second on the clock. Kentucky's coach and its fans were critical of the officiating – and of Higgins in particular. Not long after the game, Higgins' roofing business began to suffer after he became the target of an online campaign orchestrated by Kentucky fans who blamed Higgins for the loss.
Higgins filed a lawsuit against Kentucky Sports Radio and some of its supporters, alleging that the station's post-game coverage of him and his roofing business incited the harassment. Higgins claimed, among other things, that the radio station hosts' statements should not be protected by the First Amendment and that the station engaged in a "conspiracy to defame" him using its listeners as co-conspirators.
The district court evaluated Higgins' claims and dismissed the action, finding that the First Amendment protected the radio station's right to comment on Higgins' performance and the fans' reaction to it. The Sixth Circuit agreed.
The Sixth Circuit found that Higgins was a public figure and that the radio station did not incite its listeners to lawlessness. Although the court made some chiding statements that the station could have done more to discourage the fans' conduct, the court found that not only did announcers fail to specifically advocate for injury to Higgins' business, but they also, in various ways, disavowed and discouraged such action.
The panel observed that the internet can be a "vast and often unpleasant place." And it expressed a sense of understanding that Higgins wanted redress for online criticism he received. But the court concluded that, as it applies to the radio station, "a gulf lies between commenting on harassment and causing it."