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Kentucky Basketball Fans Are Crazy, 6th Circuit Agrees. Talk Radio Just Isn’t Liable for it.

LEXINGTON, KENTUCKY - MARCH 03:   John Calipari the head coach of the Kentucky Wildcats gives instructions to his team against the Tennessee Volunteers at Rupp Arena on March 03, 2020 in Lexington, Kentucky. (Photo by Andy Lyons/Getty Images)
By Joseph Fawbush, Esq. on March 09, 2020 11:04 AM

March is the best time to be a basketball fan. It is, perhaps, the worst time to be a basketball referee. At least if you make a controversial call or two, and the team those calls go against is the Kentucky Wildcats men's basketball team.

Kentucky fans are a little intense. And they expect nothing less than a high seed in the NCAA tournament and a deep run. Losing to North Carolina by one point in the Elite Eight is not only unacceptable, it means that clearly something strange happened. Sure, North Carolina is good. But what really happened was that the refs blew the game. Yeah, that must be it.

So convinced were the Kentucky fans that the refs cost them an Elite Eight game against North Carolina in 2017 that fans took it out on a referee's business. The referee, who has never had any allegations of misconduct against him, went from owning one of the best-rated roofing businesses in Omaha, Nebraska, to one of the worst rated, because Kentucky fans began posting false reviews on his business' Facebook page. A local radio sports talk show covered this phenomenon extensively, although no host outright condoned the fans' behavior, and the host most responsible for the coverage told listeners not to do it.

Freedom to Boo the Umpire

The ref eventually sued the radio station, saying that they facilitated this extraordinary takedown of his unrelated business. He also received threatening phone calls at home and work. A unanimous Sixth Circuit panel held that the radio station was protected under the First Amendment, however, because the coverage involved matters of public concern and were said in a public place.

While Kentucky Sports Talk radio may have ultimately encouraged fans to post negative reviews with their coverage, they did not incite unlawful behavior. While the referee argued that any statements about not writing bad reviews of the referee's business were just dog whistles for rabid Kentucky fans, the Sixth Circuit did not buy that the host was encouraging unlawful behavior. As Circuit Judge Jeffrey Sutton wrote in the unanimous opinion, “the internet is a vast and often unpleasant place . . . parties reporting on that unpleasantness cannot be sued simply for failing to condemn it strenuously enough."

The opinion even cited General George MacArthur, who once wrote that he was proud to protect American freedoms, including the freedom to boo the umpire. The Sixth Circuit agrees. Boo away, Kentucky fans. But seriously, don't ruin a referee's small business.

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