NCAA referee John Higgins asked the Sixth Circuit to accept his case against a Kentucky radio station, as well as two of its hosts, in a brief filed on Monday. Higgins alleges that the hosts deliberately incited fans to attack his roofing business and send him death threats following a March 26, 2017 NCAA tournament game between the University of Kentucky Wildcats and the University of North Carolina Tar Heels in which the Wildcats lost, 75-73, ending their season. According to the lawsuit, an unknown person uploaded a video to the internet featuring clips of the calls in question. The video included his phone number and information for his business, a roofing company called Rooferees.
Higgins claims he received phone calls both at his business and home, as well as death threats and other offensive messages which were sent to both him and his wife. His brief stated Kentucky Sports Radio LLC hosts Matthew H. Jones and Drew Franklin’s “conspiracy to defame ” him was not a matter of public concern and therefore the “shield of the First Amendment” does not apply. He also claimed that he, his family members, and Rooferees employees feared for their lives as a result of the defendants’ conduct.
During their radio show the day after the game, the hosts mentioned Higgins’ roofing business while discussing Higgins’ perceived poor refereeing performance. Although Jones mentioned that posting his business card online would “constitute ‘harassment,’” he read the name of Higgins’ company website on the air and even spelled it out for his audience. On March 28, the hosts “happily” announced that Higgins’ business was getting “crushed” on its Facebook page. Franklin stated that he would not link the page on the air, but the hosts read many of the comments posted. Both hosts admitted on the air to calling Higgins’ business themselves, and the FBI answered the call.
Higgins also claims in his brief that he suffered “severe business disruption” including “hundreds of unwanted phone calls per day; crash of the voicemail system because of too many calls” as well as other inconveniences such as receiving “fake calls of leaky roofs . . . requiring follow-up” among other indiscretions. Perhaps most alarming were the detailed phone message death threats quoted in his brief. The brief describes an alleged nexus between these instances and the words and actions of Jones and Franklin as well as the radio station.
U.S. District Judge Joseph M. Hood initially dismissed the lawsuit on March 20, 2018. Judge Hood stated that although he did not condone the conduct, he felt that their remarks on Higgins’ were protected by the First Amendment. Judge Hood frequently cited Snyder v. Phelps, a landmark case in which the United States Supreme Court decided in favor of the controversial Westboro Baptist Church asserting their First Amendment right to free speech, even if the speech is viewed or interpreted as “offensive” or “outrageous.” In Snyder v. Phelps, church members picketed outside of the funeral of a soldier who was killed in the Iraq War with demeaning signs.
This appeal argued that the district court was wrong to find that the comments were a matter of “public concern” as Judge Hood described because it was merely an NCAA Tournament game. Higgins also questioned the district court’s method of research and failure to address his two claims for conspiracy to defame.