Misericordia University Professor and Student Collaborate for Article in Law Journal

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Joshua D. Winneker, J.D.
Sam C. Ehrlich, J.D.

Joshua D. Winneker, J.D., associate professor of business at Misericordia University, recently co-authored the scholarly article, “Higgins V. Kentucky Sports Radio Reframed: Balancing Free Speech and Emotional Distress Liability When Fans Take Things Too Far,” in the Charleston Law Review with Sam C. Ehrlich, J.D., a doctoral candidate at Florida State University.

In the research paper, the authors address the intersection of intentional infliction of emotional distress tort liability and the defense of free speech protection under the First Amendment when dealing with abusive and unruly fans during and after sporting events. Ian Silfies of Palmerton, a Misericordia University student double majoring in philosophy and Government, Law and National Security, served as a research assistant for the scholarly project.

“… some fans simply take it too far and continue to verbally express their displeasure against the players and referees even after the game has ended by contacting them directly to harass them, their families and their businesses,” the authors wrote in the paper. “The actions by the overzealous fans lead to certain questions about the potential reach of the First Amendment within these contexts: namely whether these fan actions should be considered protected free speech and how far these protections – if any – should extend.”

The paper focuses on the controversial college basketball game that pitted the University of Kentucky against the rival North Carolina Tar Heels on March 26, 2017. After the game, Kentucky coach John Calipari expressed his dissatisfaction with the officiating.

Kentucky fans channeled their disappointment and perceived unfairness of game officials at the referees, posting long messages and conspiracy theories on the Internet. Furthermore, Kentucky Sports Radio also devoted a majority of its airtime and column space to blame referee John Higgins for the loss, including airing calls from frustrated fans.

Shortly thereafter, fans acted on their criticism and posted a video online highlighting Higgins’s perceived bad calls, and included a picture of the referee standing next to a truck for his personal roofing company with the business’ phone number, website address and home phone number. As a result, Kentucky fans began spamming Higgins’s phone numbers and posting false negative reviews on his roofing company’s social media pages. The phone calls allegedly included death threats and drew attention from local police and the FBI.

Kentucky Sports Radio allegedly did not help the situation as it posted the controversial video, and read several emails from listeners on air. The radio hosts also seemingly delighted in the fans’ actions, commenting that while the negative reviews were “a bad idea” they are “funny,” and stated “this is the only way they can express their frustration,” according to the scholarly article.

Higgins, his wife, and his company filed a lawsuit against Kentucky Sports Radio alleging the radio station tortiously invaded his privacy by posting his personal information on their website and intentionally inflicted emotional distress on Higgins and his wife through “their encouragement and enticement to thousands of people to utilize the contact information” to harass Higgins and his company, the authors wrote in the law journal.

In the end, the United States District Court for the Eastern District of Kentucky made clear that the radio hosts’ conduct was protected speech under the First Amendment, and later affirmed by the Sixth Circuit Court of Appeals on Feb. 27, 2020. The District Court judge also remarked that the fans involved in the harassment might have crossed the line of common decency and opened themselves up to potential civil liability actions.

This language provided by the District Court, according to the authors, possibly signals that the court sees some potential for future claims by referees against unruly fans or claims by players faced with a similar situation for intentional infliction of emotional distress. To this date, though, there is no binding precedent to support that possibility.

“Fandom is important within the context of sports contests,” the authors concluded, “but when fans’ verbal harassment leaves the confines of the game and instead focuses on the personal lives, families, and businesses of the players or referees from the game, it is difficult to argue that such actions should be protected by the shield of the First Amendment.”

For more information about the academic programs available in the College of Business at Misericordia University, please call 570-674-6400 or visit www.misericordia.edu/business.