The Utah Court of Appeals has spoken: an athlete’s opinion
on what connotes racist rhetoric is protected free speech. In a
significant legal ruling that underscores the balance between
sportsmanship, the right to free expression, and the duty of
professional athletes to maintain their composure, the Utah Court
of Appeals recently confirmed a lower Utah state court ruling
granting summary judgment in favor of Russell Westbrook and the
Utah Jazz in a lawsuit brought against him and the team by a
heckling fan, Shane Keisel. This decision, while confirming the
First Amendment rights of athletes and representatives of
professional sports teams, also clarifies the limits of acceptable
fan conduct in professional sports venues.
In December 2019, Keisel and his wife filed a complaint in the
Utah Fourth District Court, Provo Department against the Utah Jazz
and Russell Westbrook asserting multiple causes of action,
including defamation, false light, intentional infliction of
emotional distress, and negligent infliction of emotional distress.
The suit was filed after the two fans were banned from the arena by
the Jazz after the team conducted an internal investigation, which
determined that Keisel and his wife had violated the arena’s
Code of Conduct.
The basis for each cause of action were comments made by
Westbrook and representatives from the Jazz. Westbrook was
interviewed when a video of the altercation, which Keisel insisted
should go viral, surfaced. Westbrook stated:
“Obviously, everybody’s talking about the same video,
but the realization of it is, how it started was a young man and
his wife in the stands told me to get down on my knees like you
used to, and for me, that’s just completely disrespectful. To
me, I think it’s racial….”
The Jazz, following their decision to ban Keisel and his wife,
published a press release stating that “the Utah Jazz will not
tolerate fans who act inappropriately. There is no place in our
game for personal attacks or disrespect.” On March 14, 2019,
the Jazz emailed its season ticket holders, reiterating its Code of
Conduct and stating, “We do not permit hate speech, racism,
sexism, or homophobia.” That night, the owner of the Jazz,
Larry H. Miller, addressed the arena, stating, “We are not a
racist community.”
Following the publicity surrounding the altercation, Keisel was
terminated from his employment at a local dealership, and his
now-wife, Jennifer Huff, who was working as a house cleaner and
furniture refinisher, lost work because of the incident.
The Lower Court Decision
In May 2021, following motions by both parties for summary
judgment, the lower court dismissed all of Keisel and his
wife’s claims against Westbrook and the Jazz.
Defamation Claims
The defamation claims against Westbrook were dismissed on two
grounds. The court concluded that no reasonable listener could have
understood the statement to be directed at Keisel or Huff, as the
‘man and his wife’ to whom Westbrook referred would have
had access to other news sources over which Westbrook had no
control, referring to a local news station and ESPN, on which
Keisel appeared discussing the altercation. The court also
concluded that “whether a person is racist or whether a
statement is racial is a matter of opinion that cannot be verified
as true or false.” Because it was Westbrook’s opinion that
the statement was racist, the court concluded that it could not
give rise to a claim of defamation. The court dismissed the
defamation claim against the Jazz on similar grounds, stating,
“calling a person racist or attributing racist statements to
him is not actionable in defamation.”
The Remaining Claims
Because these additional claims were also based on the same
statements at issue in the defamation claims, the court concluded
that Keisel and Huff cannot circumvent First Amendment protections
by rephrasing their failed defamation claims as non-defamation
torts. The court clarified that the non-defamation torts must first
meet the First Amendment requirements, which, in this case, they
did not. Further, because the statements on racism were opinions
and cannot be objectively verified as true or false, “as a
matter of law, a person cannot be negligent as to the falsity of
such a statement.”
Finally, the emotional distress claim based on Westbrook’s
in-game statements was dismissed because 1) there was security
present, and 2) Keisel and his wife were not in close proximity to
Westbrook so they could not have reasonably expected Westbrook to
act on his threats. Furthermore, the court concluded that “a
reasonable speaker [Westbrook] could not have realized that the
in-game statement would cause emotional distress.”
Keisel and Huff’s Appeal
Defamation
The Court of Appeals agreed with the lower court’s reasoning
for dismissing the defamation claim against Westbrook, stating that
“Westbrook’s post-game statement was a constitutionally
protected statement of opinion” because opinions cannot be
verified as either true or false, and they are not subject to
claims of defamation. The Court noted that Keisel himself
acknowledged that his statement could have been interpreted as
sexual in nature, and because the implicit subtleties of context
could allow Westbrook to understand this as a sexual slur, they
could also allow Westbrook to understand it as a racial slur.
Additionally, the court pointed to Westbrook’s qualifiers that
his statement was subjective in nature. In his comments, Westbrook
stated qualifiers such as “for me,” “to me,”
and “I think.” Any reasonable person would understand
these statements to be his opinion alone.
The Court recognized that Keisel may have vaguely attempted to
raise a claim of defamation by implication but ultimately found
these arguments to be unpersuasive. Westbrook, in his statement,
clearly addressed the abuses by NBA fans generally, his experiences
as a whole in Utah, and was not referring to Keisel when discussing
protecting his family. The court found the remaining arguments by
Keisel unpersuasive and affirmed the lower court’s grant of
Westbrook’s motion for summary judgment on the defamation
claims.
Similarly, the Court affirmed the lower court’s grant of
summary judgment as to the claim of defamation against the Utah
Jazz. The Court agreed that the statements made in the emails and
in addressing the arena were statements of pure opinion, incapable
of being verified because opinions embody ideas and not facts, and
thus cannot serve as the basis for defamation liability. The Court
concluded that Westbrook, Miller, and the Jazz had a
constitutionally protected right to express their opinions.
The Remaining Claims
The remaining claims, as they pertain to the same comments that
the defamation claims are based on, necessarily fail, according to
the Court of Appeals. The Court explained that there is substantial
overlap between defamation claims and speech-based tort claims. The
Court concluded that where statements at issue in the defamation
claim are found to be constitutionally protected opinions, the
remaining claims based on the same statements must fail as a matter
of law.
Finally, the Court addressed Westbrook’s liability for the
in-game outburst following Keisel’s heckling. The Court of
Appeals agreed with the District Court that Westbrook’s
outburst, while offensive, did not – as a matter of law – rise to
the level of “extreme or outrageous.” Importantly, the
Court clarified that in emotional distress claims, the statements
must be considered in the context in which they occurred. Here, the
Court stated that “society has unfortunately come to expect
some amount of intemperate behavior” at professional sporting
events. The Court held that because the comments were made in the
presence of security personnel and thousands of spectators and
because Keisel and his wife remained in the arena following the
altercation, they could not have actually believed they were at
risk of Westbrook following through on his threats.
The Court found the remainder of Keisel’s arguments
unpersuasive and affirmed the District Court’s grant of summary
judgment in Westbrook and the Jazz’s favor in its entirety.
The Keisel v. Westbrook decision represents a
significant legal milestone that highlights the complex
intersection of First Amendment protected free speech and
expression, sportsmanship, and the legal rights of professional
athletes and fans. In this case, the Utah Court of Appeals played a
pivotal role in clarifying the boundaries of acceptable conduct
within sports arenas and the protection of free speech rights
guaranteed by the Constitution.
Ultimately, this legal outcome has broader implications for the
sports world, highlighting the delicate balance between the rights
of athletes to compete without undue distraction or harassment and
the rights of fans to express themselves within the boundaries of
acceptable conduct. The case provides potentially valuable legal
precedent for future disputes in the realm of sports and the
intersection of free speech and acceptable fan conduct in
professional athletics.
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