From Keisel v. Westbrook, decided today by the Utah Court of Appeals (written by Judge Ryan D. Tenney and joined by Judges Michele M. Christiansen Forster and Ryan M. Harris); for some reason, I couldn't find the full opinion yet on the court's website, but I'll link to it when it's up:
In March 2019, the Utah Jazz were playing a game against the Oklahoma City Thunder. Midway through the second quarter, Russell Westbrook, the Thunder's point guard at the time, had a verbal altercation with Shane Keisel, a Jazz fan who was sitting next to his girlfriend Jennifer Huff just a few rows up from the court. In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase "on your knees." Westbrook responded profanely and aggressively, and his response was caught on video and then circulated on social media before the game had concluded. When Westbrook was asked about the altercation in a post-game interview, Westbrook said that he thought Keisel's initial comment to him was "racial." Westbrook also said that Keisel's "wife" had made a similar comment.
The Jazz quickly investigated the altercation, determined that Keisel had violated a code of conduct that governs fan behavior, and banned Keisel from attending its home games for life. Before the next home game, then-owner Gail Miller addressed the crowd and said, among other things, "We are not a racist community." …
Keisel and Huff sued for libel and related torts, but the court rejected the claim:
Keisel's defamation claim against Westbrook was based on Westbrook's post-game statement, wherein Westbrook stated that what Keisel had said to him was "completely disrespectful" and he thought it was "racial." … [But] Westbrook's post-game statement was a constitutionally protected statement of opinion….
After stating that a "young man and his wife in the stands told me, ah, to get down on my knees like you used to," Westbrook opined that "for me that's just completely disrespectful, ah to me, ah, I think it's racial." Keisel's claim is largely focused on the latter portion of this statement—Westbrook's assertion that "I think it's racial." But the district court concluded that this was a statement of opinion, and we agree.
Although no Utah appellate case has yet considered this kind of statement in a defamation case, many courts have concluded that calling someone a racist cannot be actionable as defamation. And this is so because the statement cannot be verified as being true or false. See, e.g., Squitieri v. Piedmont Airlines, Inc., No. 3:17CV441, 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018) (concluding that statements "indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false" and thus are "statements of opinion … not actionable for defamation"); Edelman v. Croonquist, No. 09-1938, 2010 WL 1816180, at *6 (D.N.J. May 4, 2010) (concluding that a defendant's characterization of a plaintiff as racist "is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation"); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D. Ill. July 19, 2007) (concluding that the "defendants' description of [the plaintiff] as a racist" was, as a matter of law, "an opinion and thus is not actionable"); Smith v. School Dist., 112 F. Supp. 2d 417, 429 (E.D. Pa. 2000) ("While the [c]ourt acknowledges that a statement that [the] plaintiff is 'racist and [antisemitic],' if it was made, would be unflattering, annoying and embarrassing, such a statement does not rise to the level of defamation as a matter of law because it is merely non-fact based rhetoric.").
That said, some courts have held that an allegation of racism can in certain circumstances be defamatory. See, e.g., Garrard ex rel. R.C.G. v. Charleston County School Dist., 890 S.E.2d 567, 598 (S.C. 2023) (rejecting "any suggestion that calling someone a racist can never be defamatory"); 50 Am. Jur. 2d Libel and Slander § 200 (2023) (noting the divide in some cases on this point). And on this front, some courts have drawn a distinction between an allegation of racism generally (which would not be actionable) and an allegation based on more particular conduct (which could be). See, e.g., La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir. 2020) (holding that "accusations of concrete, wrongful conduct are actionable[,] while general statements charging a person with being racist, unfair, or unjust are not" (quotation simplified)); Law Offices of David Freydin, PC v. Chamara, 24 F.4th 1122, 1131 (7th Cir. 2022) (recognizing that Illinois defamation law treats allegations of racism "as actionable when based on identifiable conduct but as non-actionable when stated in general terms, without asserting specific factual support"); Forte v. Jones, No. 1:11-cv-0718, 2013 WL 1164929, at *6 (E.D. Cal. March 20, 2013) (holding that while an "allegation of membership in the Ku Klux Klan" would be actionable, an "allegation that a person is a 'racist,' on the other hand" would not be actionable "because the term 'racist' has no factually-verifiable meaning")….
[A]s an initial matter, we note that some courts have held that even if an allegation of racism was tied to a particular statement or conduct, it's still protectible opinion. See, e.g., Skidmore v. Gilbert, No. 20-cv-06415, 2022 WL 464177, at *2–3, *9–10 (N.D. Cal. Feb. 15, 2022) (concluding that characterizing a statement from a student's Facebook page as "virulently racist" and "disturbingly xenophobic" was non-verifiable opinion); Dodge v. Evergreen School Dist. No. 114, No. 3:20-cv-05224, 2020 WL 4366054, at *6 (W.D. Wash. July 30, 2020) (concluding that characterizing someone as "racist" and "bigoted" based on wearing a MAGA hat was non-verifiable opinion, and further concluding that "whether someone is racist, bigoted, and hateful in general is not a factual question"). And the underlying rationale for these decisions is the same rationale at issue in other cases involving other kinds of opinions: the indeterminacy of an opinion itself. Because "a certain set of facts might be viewed as racially insensitive by one group of people who share the same political or social views, but another group might view it as noncontroversial and socially acceptable," a court is "not in a position to give its imprimatur to one view or the other" precisely because "the phraseology used is one of opinion … not capable of being proven true or false." …
Indeed, Keisel himself implicitly acknowledged the fluid nature of interpretation while speaking with General Counsel the day after the altercation. There, Keisel agreed that his statement to Westbrook could have been construed as being derogatory in a sexual sense. According to Keisel, Westbrook "could have taken it as, oh, yeah I was telling him that he was going to suck some dick or whatever. I get that there could be sexual type of things. But racism? Come on, man."
The thing that would make this statement susceptible to a sexual connotation, however, was its attendant context—where the statement was made, who said it, who the comments were directed at, and what sorts of cues were implied by culture or circumstance. But if 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. And this is why Westbrook's assertion that Keisel's comment was "racial" can't be proven to be true or false. Simply put, if beauty is in the eye of the beholder, ugliness is too.
As a result, we conclude that although Westbrook opined that particular statements were "racial" in nature (as opposed to directing that kind of assessment at Keisel more generally), his opinion still enjoyed constitutional protection. And lest there was any doubt that he was indeed expressing an opinion, Westbrook himself added several qualifiers that emphasized the subjective nature of what he was saying. Again, Westbrook said that "for me that's just completely disrespectful, ah to me, ah, I think it's racial." Those three qualifiers—"for me," "to me," "I think"—all anchored Westbrook's ensuing comments to his own perception of Keisel's earlier statement. Given these qualifiers, any reasonable person who heard Westbrook's statement would understand that Westbrook was doing nothing more than expressing an opinion. And statements of opinion are constitutionally protected….
Keisel next argues that the district court erred in granting the Jazz's motion for summary judgment on the defamation claim that Keisel filed against the team. As with his claims against Westbrook, Keisel argues that the Jazz defamed him by falsely communicating to the public that he had said something racist—both expressly and by implication….
The [Jazz's] March 12 press release said nothing about racism. Rather, it simply said that Keisel was being banned for "excessive and derogatory verbal abuse directed at a player." As noted, Keisel admitted to General Counsel that his comments to Westbrook could have been interpreted as "sexual type" insults. He then admits in his brief that his words to Westbrook were "somewhat capable of being misinterpreted" as being "sexually" derogatory, and he faults the Jazz for "falsely label[ing] the incident racial instead of homophobic." Given his own admissions, no reasonable person could think there was anything false, much less defamatory, about this press release.
So too with respect to the March 14 email. There, the Jazz informed ticket holders: "We do not permit hate speech, racism, sexism or homophobia. We also no not allow disruptive behavior, including bullying, foul or abusive language, or obscene gestures." The Jazz didn't single out any particular kind of violation, instead referring to various categories collectively. And again, Keisel admits that his words to Westbrook could have been understood as a sexually derogatory taunt. We therefore see no basis for concluding that this email defamed Keisel.
This leaves the pre-game statement by Miller before the March 14 home game. Although Miller didn't name Keisel, Keisel argues that she defamed him by suggesting that he had said something racist to Westbrook at the earlier game. Though somewhat unclear from his briefing, we understand his argument to be focused on the "on your knees" comment…. [The court concluded, though, that this too was an opinion for reasons similar to those given as to Westbrook. -EV]
In a final attempt to establish some basis for liability against the Jazz, Keisel suggests that the team defamed him by implication in a manner that's distinct from the claim against Westbrook. Keisel points out that in the March 12 press release, the Jazz publicly referred to their investigation into the incident. According to Keisel, when Miller then publicly said on March 14 that "[w]e are not a racist community," she thus implied that the Jazz had learned through their investigation that Keisel had said something "worse" to Westbrook, such as "the 'N' word." In Keisel's view, the Jazz thus defamed him by not fully informing the public about the results of their investigation, while a full disclosure would have cured the allegedly defamatory implications that the public might otherwise draw from Miller's statement….
Keisel does not cite any Utah authority for what's essentially a defamation-by-incomplete-disclosure claim…. [But a]ssuming for argument only that Keisel is correct about both the doctrine's validity and its contours, his claim still fails on the record before us…. [U]nder Utah law, the first step in analyzing a defamation-by-implication claim is to determine whether "a reasonable fact finder" could "conclude that the underlying statement conveys the allegedly defamatory implication." And Keisel's proposed version of such a claim turns on whether the speaker reasonably implied the existence of undisclosed facts that are themselves defamatory. But in applying this same doctrine, the Seventh Circuit has held that if a statement "refers to facts in the public record," it "is not actionable apart from those facts." And the court then cited with approval an Illinois case holding that a statement about a matter of public controversy was not actionable because "a newspaper earlier had published the facts on which these characterizations had been based."
In another case, the Rhode Island Supreme Court likewise held that if the facts "underlying an expressed derogatory opinion are publicly known or disclosed, the opinion, justified or unjustified, is privileged as a matter of law." In such a circumstance, listeners "will understand they are getting the author's interpretation of the facts presented" and "are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed defamatory facts."
Here, the altercation between Keisel and Westbrook occurred in front of thousands of other fans. There was nothing hidden or private about it. And before the Jazz ever spoke publicly about it, Keisel and Westbrook had both given public accounts of what Keisel had allegedly said. Westbrook claimed in his post-game interview that Keisel had told him to "get down on [his] knees like [he] used to." And in his own interview with KSL that night, Keisel said that he had told Westbrook to "sit down and ice your knees." In the days that followed, both assertions were widely discussed in local and national media.
True, the Jazz then informed the public through a press release that the team had conducted an investigation. And a few days later, Miller made the public statement that "[w]e are not a racist community." But we don't see anywhere in the press release, Miller's statement, or any other place in the record where the Jazz reasonably implied that their investigation had uncovered evidence that Keisel had said anything worse than what had already been publicly reported.
If anything, Miller implied the opposite. At the outset of her statement, she said that"one of our 'fans' conducted himself in such a way as to offend not only a guest in our arena but also me personally, my family, our organization, the community, our players and you, the best fans in the NBA." By noting that Keisel's conduct had offended "a guest in our arena," Miller was making an apparent reference to Westbrook; and by doing so, Miller was suggesting that the Jazz were reacting in part to his view of the offensive nature of what had been said. As already discussed, Westbrook had publicly expressed his view that Keisel's "on [your] knees" comment alone was racial.
Given all this, we believe that Keisel's proposed defamation-by-inadequate-disclosure claim stretches the record too far. The Jazz told the public that they had investigated, and then, as was the team's constitutional right, the Jazz reacted publicly. But by that point, the details of that altercation had been widely discussed, and those publicly discussed details had already prompted Westbrook to assert that Keisel had said something racial.
Read in context, Miller's statement was a reaction to both that and the controversy that had followed. We see no place where the team reasonably implied that it had uncovered evidence that Keisel had said anything else that was worse than the public already knew, let alone something so particularly pointed as "the N word." As a result, the district court correctly dismissed this aspect of the defamation claim as well.
Matthew L. Lalli, Cameron J. Cutler, and Victor D. Vital represent Westbrook, and Jeffrey J. Hunt, David C. Reymann, Michael S. Anderson, and Victoria Rose Luman represent Jazz Basketball Investors Inc.
No word on any possible false designation of origin claim over the name "Utah Jazz."
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