HigginsVKentuckySportsRadio - KSR Brief

Case: 19-5409 Document: 20 Filed: 07/15/2019 Page: 1
No. 19-5409
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
JOHN M. HIGGINS; CAROL HIGGINS;

WEATHERGUARD, INC.,
Plaintiffs-Appellants,
v.
KENTUCKY SPORTS RADIO, LLC; MATTHEW H. JONES;

DREW FRANKLIN,
Defendants-Appellees.
__________________________________________________________________
On Appeal from the United States District Court

for the Eastern District of Kentucky
Civil Action No. 5:18-CV-00043-JMH
__________________________________________________________________
BRIEF OF THE APPELLEES KENTUCKY SPORTS RADIO LLC,

MATTHEW H. JONES, AND DREW FRANKLIN
__________________________________________________________________
Griffin Terry Sumner

Jason Renzelmann
FROST BROWN TODD LLC
400 W. Market St., 32nd Floor
Louisville, KY 40202-3363
(502) 589-5400
Counsel for Appellees Kentucky Sports Radio LLC,

Matthew H. Jones, and Drew Franklin
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TABLE OF CONTENTS
CORPORATE DISCLOSURE ...............................................................................i
TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES .................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ....................................... viii
STATEMENT OF THE CASE ............................................................................... 1
A. Statement of Facts. .............................................................................. 1
B. Procedural History. ............................................................................. 6
SUMMARY OF THE ARGUMENT ..................................................................... 8
ARGUMENT .......................................................................................................... 11
I. Standard of Review...................................................................................... 11
II. The KSR Defendants’ speech is protected by the First

Amendment and the District Court did not err in dismissing
the Higgins Plaintiffs’ claims. ..................................................................... 12
A. The KSR Defendants’ speech does not fall within the

First Amendment’s categorical exclusion for
“incitement” of unlawful conduct. ................................................... 14
B. The KSR Defendants’ speech addressed matters of

public concern. ................................................................................... 21
1. The content of the speech was addressed to a

matter of public concern. ....................................................... 23
2. The form and context of the KSR Defendants’

speech further confirms it addressed matters of
public concern. ........................................................................ 28
ii
III. The District Court did not fail to follow the legal standards set
forth in Twombly or Iqbal............................................................................ 29
A. The Higgins Plaintiffs do not show the District Court

actually relied upon any material outside the record
to reach its result. .............................................................................. 29
B. The materials to which the Higgins Plaintiffs object

were made part of the record by their own pleadings. .................. 31
IV. The District Court did not err in dismissing the Higgins
Plaintiffs’ conspiracy claims. ...................................................................... 35
A. The District Court properly held that the First

Amendment bars the Higgins Plaintiffs’ “conspiracy”
claim to the same extent as their “incitement” claim. ................... 36
B. The Higgins Plaintiffs have not alleged that any of the

KSR Defendants’ statements constituted unprotected
defamation. ......................................................................................... 37
C. No “conspiracy to defame” or “conspiracy” claim

lies........................................................................................................ 39
D. The District Court’s decision was not based on the

Kentucky Constitution – however, this Court may
exercise its discretion to consider it on appeal. .............................. 41
CONCLUSION....................................................................................................... 41
CERTIFICATION OF COMPLIANCE WITH RULE 32(A) .......................... 43
CERTIFICATE OF SERVICE ............................................................................ 44
DESIGNATION OF RELEVANT LOWER COURT DOCUMENTS ............ 45
iii
TABLE OF AUTHORITIES
Case Page(s)
Acosta Orellana v. CropLife Int’l,

711 F. Supp. 2d 81 (D.D.C. 2010) ...................................................................... 39
A.G. by and through N.G. v. Cmty. Ins. Co.,

363 F. Supp. 3d 834 (S.D. Ohio 2019) ............................................................... 32
Andrews v. Ohio,
104 F.3d 803 (6th Cir. 1997) .............................................................................. 11
Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) ............................................................................................ 16
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................ 12
Bassett v. Nat'l Collegiate Athletic Ass’n,

528 F.3d 426 (6th Cir. 2008) .............................................................................. 12
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................................................................................ 12
Bible Believers v. Wayne County, Mich.,

805 F.3d 228 (6th Cir. 2015) (en banc) ............................................14, 15, 16, 20
Bormuth v. Cty. of Jackson,

870 F.3d 494 (6th Cir. 2017) .........................................................................33, 35
Bose Corp. v. Consumers Union of the United States, Inc.,

466 U.S. 485 (1984) ............................................................................................ 32
Brandenburg v. Ohio,
395 U.S. 444 (1969) .....................................................................................passim
City Mgmt. Corp. v. U.S. Chem. Co., Inc.,

43 F.3d 244 (6th Cir. 1994) ................................................................................ 11
City of San Diego v. Roe,

543 U.S. 77 (2004) (per curium) ..................................................................22, 23
iv
Collins v. Allen,
No. 1:04-CV-572,
2006 WL 2505928 (S.D. Ohio Aug. 29, 2006) .................................................. 32
Davenport's Adm’x v. Crummies Creek Coal Co.,

184 S.W.2d 887 (Ky. 1945) ................................................................................ 40
Dishnow v. Sch. Distd. of Rib Lake,

77 F.3d 194 (7th Cir. 1996) ................................................................................. 23
Dombrowski v. Pfister,
380 U.S. 479 (1965) ............................................................................................ 13
Don King Productions, Inc. v. Douglas,

742 F. Supp. 778 (S.D.N.Y. 1990) ..................................................................... 24
Dorsey v. Nat’l Enquirer, Inc.,

973 F.2d 1431 (9th Cir. 1992) ............................................................................. 13
Dun & Bradstreet Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) ............................................................................................ 22
Falls v. Sporting News Pub. Co.,

714 F. Supp. 843 (E.D. Mich. 1989) .................................................................. 27
Fodor v. Berglas,
No. 95 CIV 1153,
1995 WL 505522 (S.D.N.Y. Aug. 24, 1995)...................................................... 26
Greenberg v. Life Ins. Co. of Va.,

177 F.3d 507 (6th Cir. 1999) .........................................................................31, 32
Harbin–Bey v. Rutter,
420 F.3d 571 (6th Cir. 2005) .............................................................................. 11
Hensley Mfg. v. ProPride, Inc.,

579 F.3d 603 (6th Cir. 2009) .............................................................................. 32
Hess v. Indiana,
414 U.S. 105 (1973) ............................................................................................ 16
Holt v. Cox Enter.,

590 F. Supp. 408 (N.D.Ga. 1984) ....................................................................... 24
v
Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ........................................................................................25, 38
Mullins v. Carver,
No. 2015-CA-000655-MR,
2016 WL 4934593 (Ky. Ct. App. Sept. 16, 2016).............................................. 40
Mullins v. Marathon Petroleum Co., LP,

No. 12-cv-00108-KRW,
2013 WL 2285140 (E.D. Ky. May 22, 2013) ..................................................... 39
New York Times v. Sullivan,

376 U.S. 254 (1964) ......................................................................................32, 38
Nixon v. Wilmington Tr. Co.,

543 F.3d 354 (6th Cir. 2008) ........................................................................32, 34
Nwanguma v. Trump,
903 F.3d 604 (6th Cir. 2018) ........................................................................passim
People’s Bank of N. Ky. v. Crowe Chizek & Co.,

277 S.W.3d 255 (Ky. App. 2008) ....................................................................... 39
Rankin v. McPhearson,
483 U.S. 378 (1987) ............................................................................................ 23
Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co.,

772 F.2d 214 (6th Cir. 1985) .............................................................................. 11
Sheu v. Detroit 90/90,

No. 14-CV-14177,
2015 WL 2124624 (E.D. Mich. May 6, 2015) ................................................... 32
Snyder v. Phelps,
562 U.S. 443 (2011) .....................................................................................passim
Taft Broad. Co. v. United States,

929 F.2d 240 (6th Cir. 1991) .............................................................................. 41
Texas v. Johnson,
491 U.S. 397 (1989) ............................................................................................ 14
vi
Thurman v. Yellow Freight Sys., Inc.,

97 F.3d 833 (6th Cir. 1996) ................................................................................. 15
Time, Inc. v. Hill,

385 U.S. 374 (1967) ............................................................................................ 22
Washington v. Smith,
893 F. Supp. 60 (D.D.C. 1995) ........................................................................... 24
Wausau Underwrites Ins. Co. v. Vulcan Dev. Co.,

323 F.3d 396 (6th Cir. 2003) ............................................................................... 40
Williams v. Scottrade, Inc.,

No. 06-10677,
2006 WL 2077588 (E.D. Mich. July 24, 2006) .................................................. 32
vii
STATEMENT REGARDING ORAL ARGUMENT
The District Court’s decision can be affirmed on the basis of settled
precedent without oral argument.
viii
STATEMENT OF THE CASE
This appeal arises from the District Court’s grant of Appellees’ Motion to
Dismiss. The District Court properly held that this suit sought to impose state tort
liability on protected speech addressing a matter of public concern, and
consequently, was barred by the First Amendment to the U.S. Constitution. The
Plaintiffs/Appellants are a nationally prominent college basketball referee, John M.
Higgins, his wife, Carol Higgins, and the roofing business they own and operate,
Weathergard, Inc. (collectively, the “Higgins Plaintiffs”). The
Defendants/Appellees are commentators and publishers of sports news in
Kentucky with a focus on University of Kentucky athletics, as more fully described
below. The Higgins Plaintiffs’ suit contends that the Appellees’ media coverage of
a NCAA basketball game, including their coverage of negative fan reactions to the
officiating during the game, encouraged unknown third parties to make harassing
communications and leave negative online reviews of their roofing business,
causing harm to their business. The District Court properly determined that the
speech alleged in the lawsuit involved matters of public concern, and that none of
the speech at issue constituted “incitement” under U.S. Supreme Court precedent.
A. Statement of Facts.
Appellant John M. Higgins is a NCAA basketball referee who utilizes his
notoriety as a NCAA referee to promote his roofing business – Weatherguard, Inc.
1
– which uses “rooferees” as part of its website domain name. On Sunday, March
26, 2017, Mr. Higgins refereed an NCAA tournament basketball game in which the
University of North Carolina Tar Heels narrowly defeated the University of
Kentucky Wildcats by a score of 75 to 73. Many Wildcat fans were displeased with
the outcome of the game and attributed UK’s loss to Mr. Higgins’ officiating.
Kentucky Sports Radio LLC (“KSR”), Matthew H. Jones, and Drew
Franklin (collectively, the “KSR Defendants”) are commentators on and
publishers of sports news in Kentucky focusing on University of Kentucky
athletics. Mr. Jones is a radio host of a Kentucky-based radio program known as
Kentucky Sports Radio. Kentucky Sports Radio is aired on TalkRadio 1080 WKJK
in Louisville, Kentucky and NewsRadio 630 WLAP in Lexington, Kentucky.
Kentucky Sports Radio is also broadcast live over radio on various radio stations in
many cities in Kentucky and in Williamson, West Virginia, and is available for live
streaming over the internet or as a downloadable podcast. Mr. Franklin is an editor
of a website known as “KentuckySportsRadio.com.” KentuckySportsRadio.com is
an independent college sports blog that covers the University of Kentucky’s sports
teams. The Kentucky Sports Radio blog and radio show provided coverage and
commentary on the Elite Eight game and Mr. Higgins’ refereeing of that game, as
did countless other media outlets.
2
Sometime during the night of the March 26 Elite Eight game, and the
following morning, an unknown third party, using the internet alias
“CalForTheWin,” created a video titled “John Higgins [sic] Sabotage of Kentucky”
(the “Video”) and disseminated it widely across the internet. (1st Am. Compl., R.
55, PageID# 587 at ¶ 21.) Shortly before the end of the Video, “CalForTheWin”
included a photograph of Mr. Higgins next to a Weatherguard truck along with
“Weatherguard’s business phone number, its website address, and the Higgins
family home phone number.” (Id.) The Video also invited viewers to leave a
“review of [Mr. Higgins at] http://www.facebook.com/rooferees.” (Id.) There is no
allegation that any of the KSR Defendants had any connection to or affiliation with
“CalForTheWin” or the creation of the Video.
On March 27, the Kentucky loss was a subject of discussion during the
Kentucky Sports Radio show. On the KSR radio program, Mr. Jones read emails
from listeners, including one from “Anthony” stating, “I’m thinking of leaving a
bad review on John Higgins’s roofing Yelp page.” (1st Am. Compl., R. 55,
PageID# 587 at ¶ 22.) Mr. Jones insisted that people not contact Mr. Higgins as it
“was a bad thing to do.” (Id.) Mr. Jones observed that he was aware some people
had posted Mr. Higgins’ business card online, but he advised his listeners not to
“troll the guy.” (Id. at ¶23.)
3
Later that same day, a series of articles was posted on the KSR website
commenting on the game and Mr. Higgins’ officiating. (1st Am. Compl., R. 55,
PageID# 588 at ¶24.) In the comment section of an article that was published at
11:00 pm on March 27th, an anonymous user posted the Video using the
pseudonym “CalForTheWin.”1 (1st Am. Compl., R. 55, PageID# 589 at ¶26.) The
Video’s appearance in the comment section – posted by an anonymous third party
– is the first instance of any telephone numbers or other contact information
appearing on the KSR website (or radio program) other than the reference to Mr.
Higgins’ business card.
The next day, the KSR Defendants discovered that Weatherguard’s
Facebook website had received a large number of one-star reviews and reported on
that fact on the KSR website and during the KSR radio program. (Id., PageID#
589-92 at ¶¶31-32, 35-36, 38-39, 41-43, 45.) Numerous other media outlets also
covered, commented on, and posted the third parties’ Facebook reviews on the
same day, including vice.com, thebiglead.com, and cbssports.com. (Resp. Br. Mot.
to Dismiss, R. 57, PageID# 642; Appellants’ Br., Page ID# 36.) Through all of the
coverage, the KSR Defendants insisted that readers and listeners not contact or
“troll” the Higgins Plaintiffs as admitted by the Higgins Plaintiffs in their First
Amended Complaint:
1 It is presumed, but not known, that the commenter CalForTheWin is the same
4
 “I won’t link the page because I don’t completely agree with attacking
his side hustle…” (1st Am. Compl., R. 55, PageID# 589 at ¶ 31.)
 “We here at Kentucky-Sports-Radio-dot-com do not condone the
activity from Big Blue Nation on John Higgins’ roofing company’s
Facebook page.” (Id., PageID# 590 at ¶36.)
 Mr. Jones stated, “from the outset that he did not advocate such
activity…” (Id., PageID# 591 at ¶38.)
 Mr. Jones was “literally advising [listeners] not to call.” (Id., PageID#
592 at ¶42.)
Mr. Jones also reported on the Facebook posts on a television program titled “Hey
Kentucky” where he again stated, “Kentucky fans need to calm down.” (Id.,
PageID# 593 at ¶50.)
Mr. Franklin also called Weatherguard one time to verify reports that the
FBI was investigating the third parties’ actions and reported his findings on the
KSR website. (Id., PageID# 592 at ¶45.) The Higgins Plaintiffs have not made any
allegation that Mr. Franklin said or did anything improper during this one call.
The Higgins Plaintiffs allege that on March 27 and 28, they received
thousands of telephone calls and Weatherguard’s online rating fell due to multiple
one star reviews online. (Id., PageID# 594-97 at ¶¶56-73.) Some of the messages
left by anonymous callers were serious enough to warrant police and FBI
intervention. (Id., PageID# 597 at ¶74.) These phone calls and electronic messages
made by unknown third parties form the basis of the Higgins Plaintiffs’ claims.
The Kentucky Sports Radio blog and radio show provided coverage and
person who created the Video.

5
commentary on the Elite Eight game, Mr. Higgins’ refereeing of that game, and
the actions of unknown third parties after the game – as did countless other media
outlets. Yet the Higgins Plaintiffs chose not to sue those other media outlets, nor
the unidentified third parties who actually made the phone calls and online
comments. Instead, the Higgins Plaintiffs have chosen to place the blame for their
alleged injuries solely and entirely on Mr. Jones, Mr. Franklin, and KSR.
B. Procedural History.
On October 3, 2017, the Higgins Plaintiffs filed their Original Complaint
(“Original Complaint”) in the United States District Court for the District of
Nebraska, alleging claims for intentional infliction of emotional distress, invasion
of privacy, tortious interference with a business relationship or expectancy, and
civil conspiracy. (Original Compl., R. 1, PageID# 1.) The KSR Defendants moved
the Nebraska court to dismiss the suit for lack of personal jurisdiction or,
alternatively, to transfer these proceedings to the Eastern District of Kentucky.
The Nebraska district court granted the motion, and transferred the case to the
District Court below.
The KSR Defendants then moved to dismiss the Original Complaint
pursuant to Rule 12(b)(6). (Mot. to Dismiss, R. 40, PageID# 250.) In response,
the Higgins Plaintiffs filed a motion to amend the Complaint to avoid dismissal.
(Mot. Amend Compl., R. 44, PageID# 347.). Attached to their motion to amend
6
was a Proposed Amended Complaint (“Proposed Amended Complaint”).
(Proposed Am. Compl., R. 44-3, PageID# 354.) The District Court granted the
Higgins Plaintiffs’ motion to amend and ordered the KSR Defendants to file a
Supplement to their previous Motion to Dismiss, in lieu of filing a wholly new
motion. (Minute Entry Order, R. 54, PageID# 583.)
Shortly thereafter, the Higgins Plaintiffs filed their First Amended
Complaint (“Amended Complaint”). (1st Am. Compl., R. 55, PageID# 584.) The
Original Complaint, the Proposed Amended Complaint, and the Amended
Complaint are collectively referred to hereinafter as the “Complaints.”
The KSR Defendants then filed their supplement to their motion to dismiss,
which incorporated their original motion to dismiss by reference. (Supp. Mot. to
Dismiss, R. 56, PageID# 606, 607 at n.2.)
On October 16, 2018, the District Court ordered the parties to submit
supplemental briefing on the impact of this Court’s recent decision in Nwanguma
v. Trump, 903 F.3d 604 (6th Cir. 2018), on the issues raised by the KSR
Defendants’ pending motion to dismiss and the Higgins Plaintiffs’ response brief.
(Order, R. 62, PageID# 724.) Both parties filed additional supplemental briefs
addressing Nwanguma. (Pls.’ Supp. Br., R. 63, PageID# 725; Defs.’ Supp. Br., R.
64, PageID# 730.)
On March 20, 2019, the District Court entered a Memorandum Opinion and
7
Order (“Opinion”) and a Judgment (“Judgment”) dismissing the Higgins
Plaintiffs’ suit. (Opinion, R. 65, PageID# 734; Judgment, R. 66, PageID# 780.)
The District Court held that the KSR Defendants’ speech was protected under the
First Amendment, and that the Higgins Plaintiffs’ claims were therefore all barred
as a matter of law. This appeal followed.
SUMMARY OF THE ARGUMENT
The Higgins Plaintiffs’ suit seeks to impose tort liability on the KSR
Defendants for the content of their broadcast and internet reporting about a
nationally televised basketball game, as well as their reporting and commentary
relating to the actions taken by unknown third parties toward the Higgins Plaintiffs
following the game. The Higgins Plaintiffs’ claims amount to nothing more than
an attempt to stifle protected speech in contravention of the First Amendment, and
thus, these claims were properly dismissed.
The First Amendment confers broad immunity against suits that seek to
impose state-law tort liability on protected speech. Snyder v. Phelps, 562 U.S. 443,
451 (2011). As long as speech relates to a matter of public concern, and does not
fall within any of the traditionally recognized exclusions from First Amendment
protection, the First Amendment bars all tort claims under any legal theory arising
from that speech. Id.
8
There is no merit to the Higgins Plaintiffs’ argument that the speech at issue
constitutes “incitement” of unlawful activity that is excluded from First
Amendment protections under Brandenburg v. Ohio, 395 U.S. 444 (1969). The
Higgins Plaintiffs cannot satisfy the Brandenburg standards for “incitement”
because they have not alleged any statements by the KSR Defendants that
specifically advocated unlawful activity, either implicitly or explicitly. Indeed, the
statements on which the Higgins Plaintiffs base their claims are primarily
comments by the KSR Defendants about third-party conduct that had already
occurred, not calls for future unlawful action. Moreover, the Higgins Plaintiffs’
own allegations acknowledge that the KSR Defendants repeatedly told their
audience not to call Mr. Higgins or his business and that they did not condone or
approve of any of the alleged unlawful third-party conduct. This further precludes
any finding of “incitement.”
The District Court also correctly held that the KSR Defendants’ speech
involved matters of public concern. The speech at issue concerns Mr. Higgins’
nationally televised performance as a referee in a basketball game watched by tens
of millions of people around the world, and the widespread fan backlash regarding
the officiating of the game, which was also reported by numerous national media
outlets at the time. These are quintessentially matters of public, rather than “purely
private,” concern. Snyder, 562 U.S. at 452. Moreover, the form and context of the
9
speech – on-air statements in television and radio programs and articles posted on a
popular public website – further demonstrate that the speech addressed questions
of public concern, and not purely private matters.
The Higgins Plaintiffs’ argument that the District Court improperly
considered matters outside the pleadings is also without merit. First, the Higgins
Plaintiffs do not identify any “extra record” materials that the District Court
actually relied upon for its decision, or that were necessary to the result reached.
The District Court’s opinion was based on what was absent from the Higgins
Plaintiffs’ allegations – i.e., any allegation of a statement specifically advocating
unlawful activity – not on any additional facts from other sources. Moreover, the
materials at issue were all cited and referenced in the Higgins Plaintiffs’ own
pleadings, and therefore, were properly considered by the District Court in
adjudicating the Rule 12 motion.
Equally unavailing is the Higgins Plaintiffs’ argument that the District Court
erred by failing to separately analyze their claim for civil conspiracy. Regardless
of legal theory, the First Amendment prohibits all state tort law claims that seek to
impose liability on speech related to matters of public concern. Consequently, the
Higgins Plaintiffs’ civil conspiracy claim is barred to the same extent as all of their
other tort claims. The Higgins Plaintiffs’ vague allegation that unknown third
parties may have committed actionable defamation has no bearing on whether the
10
KSR Defendants’ public statements are protected by the First Amendment.
Indeed, the Higgins Plaintiffs have repeatedly denied that they were asserting any
defamation claim based on the KSR Defendants’ speech.
Moreover, even aside from the issue of First Amendment immunity, the
Higgins Plaintiffs failed to allege any facts demonstrating the existence of a
conspiratorial “agreement” between the KSR Defendants and the unknown third
parties who committed the alleged tortious acts, which independently justifies
dismissal of the conspiracy claim.
Thus, the District Court’s Judgment should be affirmed.
ARGUMENT
I. Standard of Review.
This Court reviews the grant of a motion to dismiss for failure to state a
claim de novo. Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). When
reviewing a District Court's dismissal under Rule 12(b)(6), the Court may affirm
the District Court’s decision on any ground supported by the record, even if
different from the grounds relied on by the District Court. Andrews v. Ohio, 104
F.3d 803, 808 (6th Cir. 1997) (citing City Mgmt. Corp. v. U.S. Chem. Co., Inc., 43
F.3d 244, 251 (6th Cir. 1994); Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum
Co., 772 F.2d 214, 216 (6th Cir. 1985)).
11
Under Rule 12(b)(6), the complaint is viewed in the light most favorable to
plaintiffs, the allegations in the complaint are accepted as true, and all reasonable
inferences are drawn in favor of plaintiffs. Bassett v. Nat'l Collegiate Athletic
Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). However, “a legal conclusion couched as
a factual allegation” need not be accepted as true. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The factual allegations must “raise a right to relief above the
speculative level.” Id. The complaint must state a claim that is plausible on its face,
such that the court must be able to draw a “reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. The KSR Defendants’ speech is protected by the First Amendment and
the District Court did not err in dismissing the Higgins Plaintiffs’
claims.
The Higgins Plaintiffs seek to impose tort liability on the KSR Defendants
for engaging in speech protected by the First Amendment. Specifically, the
Higgins Plaintiffs’ suit seeks to recover damages for statements made by the KSR
Defendants on a television show, a radio show, and a public website reporting on
allegedly tortious actions by unidentified third parties. The essence of the suit is
that the KSR Defendants’ on-air and on-line statements about the actions of third-
party fans somehow “incited” or encouraged this tortious conduct, because the
content of the KSR Defendants’ reporting was overly favorable (or insufficiently
12
negative) toward the third parties’ actions. Such a claim is a blatant effort to
censor the content of protected speech, and therefore, is barred as a matter of law.
“The Free Speech Clause of the First Amendment … [is] a defense in state
tort suits” and mandates dismissal of claims seeking to impose tort liability on
protected speech relating to any “matter of public concern.” Snyder v. Phelps, 562
U.S. 443, 451 (2011) (citation omitted). Because “[t]he chilling effect upon the
exercise of First Amendment rights may derive from the fact of the prosecution,
unaffected by the prospects of its success or failure,” Dombrowski v. Pfister, 380
U.S. 479, 487 (1965), courts should strive to resolve such clams at the “earliest
possible stage.” Dorsey v. Nat'l Enquirer, Inc., 973 F.2d 1431, 1435 (9th Cir.
1992).
In Snyder, the United States Supreme Court dismissed state-law tort claims
brought by a bereaved parent against the Westboro Baptist Church, which had
picketed the funeral of the plaintiff’s son—a former soldier—with signs reading:
“Thank God for Dead Soldiers,” “Thank God for IEDs,” “You’re Going to Hell,”
and “God Hates You.” Id. at 448. The Court found that although “these messages
may fall short of refined social or political commentary,” they did speak “to broad
issues of interest to society at large” and were therefore entitled to protection. Id.
at 454. The Court emphasized that “speech cannot be restricted simply because it
is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the
13
First Amendment, it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.’” Id. at
458 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).
Thus, tort liability may not be imposed on protected speech addressing
matters of public concern, unless the speech falls within one of the “limited
number of categorical exclusions from the comprehensive protection offered by the
Free Speech Clause,” such as “fighting words,” incitement, or defamation
accompanied by “actual malice.” Bible Believers v. Wayne County, Mich., 805
F.3d 228, 243-244 (6th Cir. 2015) (en banc).
The Higgins Plaintiffs do not – and cannot – dispute these bedrock
principles. Instead, they argue that the First Amendment’s protections do not
apply to the KSR Defendants’ speech because: (1) the speech falls within the
categorical exception to the First Amendment for “incitement”; and (2) the speech
did not address matters of “public concern.” Both of these arguments fail, as a
matter of law.
A. The KSR Defendants’ speech does not fall within the First
Amendment’s categorical exclusion for “incitement” of unlawful
conduct.
The Higgins Plaintiffs argue that the speech at issue here is not protected by
the First Amendment, at all, because it falls within the exception for “incitement”
set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). But none of the allegations
14
in the Complaint comes close to satisfying Brandenburg’s narrow test for non-
protected incitement. Most notably, the Complaint fails to identify any specific
statements by the KSR Defendants that actually called for third parties to engage in
any unlawful activity. Rather, the Higgins Plaintiffs seek to impose liability
merely because they allege the speech was likely to cause third-party misconduct,
which is not sufficient to satisfy the Brandenburg incitement test. Nwanguma v.
Trump, 903 F.3d 604 (6th Cir. 2018); Bible Believers, 805 F.3d at 246. The District
Court should therefore be affirmed.
As an initial matter, this argument should be treated as waived, because the
Higgins Plaintiffs explicitly disclaimed any effort to assert an incitement claim in
the District Court. Thurman v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir.
1996) (arguments not raised or developed in district court are waived on appeal).
In point of fact, when invited by the District Court to brief the issue of incitement
based on this Court’s recent Nwanguma decision, the Higgins Plaintiffs
unequivocally stated that “this [is a] non-incitement case.” (Pls.’ Supp. Br., R. 63,
PageID# 726 at n.1.) And, although the Higgins Plaintiffs filed a brief arguing their
position, they advised that “Nwanguma is [not] relevant to this case.” (Id., PageID#
728.) Thus, the Higgins Plaintiffs expressly waived any claim for incitement.
Regardless, even if the Court addresses this issue, the Higgins Plaintiffs fail
to point to any specific facts alleged in their Amended Complaint (or any of their
15
pleadings) that satisfy the Brandenburg test. Under Brandenburg, a party’s speech
may lose First Amendment protection only when three elements are satisfied:
(1) the speech explicitly or implicitly encouraged the use of violence

or lawless action,
(2) the speaker intends that his speech will result in the use of
violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result
of his speech.
Nwanguma, 903 F.3d at 609 (quoting Bible Believers, 805 F.3d at 246). The
Higgins Plaintiffs cannot satisfy any of these requirements, much less all of them.
The first prong of the Brandenberg test requires the court to focus on the
specific words spoken by the defendants and requires identification of a statement
that “specifically advocate[s] for listeners to take unlawful action.” Nwanguma,
903 F.3d at 610. “‘[T]he constitutional guarantees of freedom of speech forbid the
States to punish the use of words or language not within narrowly limited classes
of speech.’” Id. (quoting Hess v. Indiana, 414 U.S. 105, 107 (1973)) (emphasis in
original). See also Bible Believers, 805 F.3d at 246 (“Bible Believers’ speech was
not incitement to riot simply because they did not utter a single word that can be
perceived as encouraging violence or unlawfulness.”). Absent such words
specifically advocating unlawful conduct, “[t]he mere tendency of speech to
encourage unlawful acts is not a sufficient reason for banning it.” Ashcroft v. Free
Speech Coal., 535 U.S. 234, 253 (2002).
16
Thus, in Nwanguma, this Court dismissed a Kentucky state law incitement
claim against Donald Trump because his exhortation to the crowd to “get ‘em out
of here,” referring to protesters, did not satisfy Brandenberg’s requirement for
“specific advocacy of violence.” 903 F.3d at 610 (emphasis in original). The
Nwanguma Court found that it was error for the district court to rely on allegations
about Trump’s intent, or knowledge of the likely outcome of his statements,
because “the speaker’s intent to encourage violence (second factor) and the
tendency of his statement to result in violence (third factor) are not enough to
forfeit First Amendment protection unless the words used specifically advocated
the use of violence, whether explicitly or implicitly (first factor).” Id. at 611
(emphasis added). The Court examines only “the words used by the speaker” and
“not how they may be heard by a listener.” Id. at 613. To that end, the Court also
emphasized the fact that Trump’s words were accompanied by the admonition
“don’t hurt ‘em,” which cemented the Court’s conclusion that the words
themselves did not amount to a specific advocacy of violence. Id. at 612.
Here, the Higgins Plaintiffs did not plead any words spoken or written by
any of the KSR Defendants that called for lawless action. As the Higgins Plaintiffs
are eager to point out, their Amended Complaint recounts three days’ worth of
allegedly tortious speech by the KSR Defendants compared to the “two short
statements” in Nwanguma. (Appellants’ Br., PageID# 25-26.) But the Higgins
17
Plaintiffs do not identify a single statement made during that time that could
rationally be interpreted as calling for unlawful action by third parties.
To the contrary, the only three statements referenced by the Higgins
Plaintiffs in their discussion of the first prong of the Brandenburg test are all
comments about allegedly harassing actions of unknown third parties that had
already occurred before the comments were made, and which did not contain any
call for future misconduct. (Id.) For example, the Higgins Plaintiffs cite Mr. Jones’
characterization of prior attacks as “harassment,” which – focusing on the words
themselves – explicitly refers to past third party conduct (rather than calling for
future misconduct) and, on its face, negatively characterizes the past misconduct.
(Id., PageID# 26 (quoting 1st Am. Compl., R. 55, PageID# 587 at ¶ 22).)
The other two statements relied upon by the Higgins Plaintiffs are statements
by Mr. Jones’ that the Higgins Plaintiffs characterize as “admit[ting]”
responsibility for the past misconduct of third parties: Mr. Jones’ statement that
“maybe they [the KSR Defendants] were to blame” and Mr. Jones’ admonition to
fans to stop posting further reviews because “[w]e have made our point.” (Id.
(quoting 1st Am. Compl., R. 55, PageID# 591, 594, at ¶¶ 38, 54).) But again, these
are statements about past conduct of third parties, not calls for future unlawful
action, and both statements on their face discourage further unlawful action.
18
Indeed, the Amended Complaint alleges numerous instances where the KSR
Defendants admonished their listeners and readers to not engage in any unlawful
or tortious activity. These statements echo the “don’t hurt ‘em” statement in
Nwanguma, which this Court held strongly “undercut[] the alleged violence-
inciting sense of Trump’s words.” Nwanguma, 903 F.3d at 612. Specifically, the
Amended Complaint alleges that:
 Mr. Jones told listeners to not contact Mr. Higgins because it could
constitute harassment (1st Am. Compl., R. 55, PageID# 587 at
¶22.);
 Mr. Jones was against trolling Mr. Higgins (Id., PageID# 588 at
¶23.);
 Mr. Franklin stating he did not agree with people attacking Mr.
Higgins’ business (Id., PageID# 589 at ¶31.);
 The KSR website stated they did not “condone the activity from
Big Blue Nation on John Higgins’ roofing company’s Facebook
page” (Id., PageID# 590 ¶36.);
 Mr. Jones stating he did not advocate for the actions taken by the
unknown third parties (Id., PageID# 591 at ¶38.); and
 Mr. Jones “literally advising” the listeners of the radio program

“not to call” Mr. Higgins. (Id., PageID# 592 at ¶42.)
As in Nwanguma, the Higgins Plaintiffs try to compensate for their inability
to point to any words that actually advocated for future misconduct by making
improper inferences about the KSR Defendants’ intent and expectations about
likely consequences. (Appellants’ Br., PageID# 26-28.) But these facts cannot
19
supply a basis for incitement if there is no actual statement “inciting” future
unlawful conduct, as required to satisfy prong one. Nwanguma, 903 F.3d at 610.
Regardless, the Higgins Plaintiffs’ allegations do not satisfy Brandenburg’s
second “intent” prong either. As in Bible Believers, here “the record is devoid of
any indication [the KSR Defendants] intended imminent lawlessness to ensue.”
805 F.3d at 244. The fact that the comments largely related to alleged third-party
misconduct that had already occurred in the past belies any basis for claiming they
were “intended” to provoke future misconduct. Likewise, Mr. Jones’ after-the-fact
statements about how quickly the number of negative reviews had grown in a short
period of time provide no indication that Mr. Jones had intended to cause that
result, before-the-fact.2 (Cf. Appellants’ Br., PageID# 27.)
Nor is there any evidence that the KSR Defendants knew or expected
unlawful third-party actions to be the likely result of their speech, under
Brandenburg prong three. Again, all of the statements the Higgins Plaintiffs offer
in support of their claims occurred after the fan backlash to Mr. Higgins was
2 On the “intent” prong, the Higgins Plaintiffs also reference comments on the Hey
Kentucky television show by another local television personality and stand-up
comedian, Lee Cruse, who the Higgins Plaintiffs refer to as Mr. Jones’ “sidekick.”
(Appellants’ Br., PageID# 27; Opinion, R. 65, PageID# 744-45.) But the Higgins
Plaintiffs offer no reason why the comments of Mr. Cruse, who is not a party to
this suit, should be imputed to reflect the intent of Mr. Jones or any of the other
KSR Defendants. Also, like nearly all of the other statements cited by the Higgins
Plaintiffs, Mr. Cruse’s statements were made in response to third party conduct
that had already occurred.
20
already underway. It is paradoxical to suggest that conduct which had already
occurred was a likely result of speech reporting on that conduct after-the-fact.
Indeed, accepting the Higgins Plaintiffs’ characterization of this speech as
incitement would set a dangerous precedent, and have an undeniable chilling effect
on speech. Under the Higgins Plaintiffs’ legal theory, anytime anyone in the media
reported or commented on alleged tortious conduct by third parties in a way that
did not condemn the conduct harshly enough in a plaintiff’s opinion, that person
potentially could be sued for encouraging or “inciting” the misconduct. Reporters,
commentators, and media of all forms across the country would be sued for simply
reporting on conduct and not rebuking it. The First Amendment will not tolerate
such a result.
Thus, the Higgins Plaintiffs’ allegations, even if accepted as true and viewed
in the most favorable light possible, cannot establish speech falling within
Brandenburg’s definition of unprotected “incitement.”
B. The KSR Defendants’ speech addressed matters of public

concern.
Similarly, there is no merit to the Higgins Plaintiffs’ argument that the KSR
Defendants’ speech is unprotected from state tort liability under Snyder because it
relates only to “matters of purely private significance,” as opposed to a matter of
“public concern.” Snyder, 562 U.S. at 452. The KSR Defendants’ speech related
to Mr. Higgins’ nationally televised performance as a referee in a basketball game
21
watched by tens of millions of people around the world, and to the widespread fan
backlash regarding the officiating of the game, which was also reported by
numerous national media outlets at the time. These are quintessential matters of
public, rather than “purely private,” concern and the KSR Defendants’ speech on
these topics is protected by the First Amendment. Id.
“Speech deals with matters of public concern when it can ‘be fairly
considered as relating to any matter of political, social, or other concern to the
community,’ … or when it ‘is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public[.]’” Snyder, 562
U.S. at 453 (quoting City of San Diego v. Roe, 543 U.S. 77, 84 (2004); citing Time,
Inc. v. Hill, 385 U.S. 374, 387–388 (1967)). Application of the public concern
standard requires consideration of the “content, form, and context” of the speech.
Dun & Bradstreet Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985).
Moreover, the character of, or specific viewpoints expressed by, a
defendant’s statements have no bearing on whether the statements address matters
of concern. Snyder, 562 U.S. at 453. The focus is on the nature of the subject
matter to which the statements are addressed, and the context in which they are
made, not on the content of the viewpoints expressed about that subject matter.
Thus, “[t]he arguably ‘inappropriate or controversial character of a statement is
22
irrelevant to the question whether it deals with a matter of public concern.’” Id.
(quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).
Here, every one of the relevant considerations overwhelmingly supports the
conclusion that the KSR Defendants’ speech addressed matters of public concern
and is entitled to full protection under the First Amendment.
1. The content of the speech was addressed to a matter of

public concern.
There is no doubt that the content of the KSR Defendants’ speech was
addressed to matters that were the subject of broad public interest: Higgins’ on-air
officiating performance in a nationally televised sporting event and the widely-
reported fan backlash to that performance.
The “public concern” test is a broad one (and necessarily so, lest the
decision over whether a subject area is entitled to full First Amendment protection
itself becomes a form of content discrimination). Speech need not address a
“matter[ ] of transcendent importance, such as the origins of the universe or the
merits of constitutional monarchy[,]” in order to relate to a matter of public
concern. Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996).
Speech is addressed to a matter of public concern if it relates to “a subject of
general interest and of value and concern to the public at the time of publication.”
City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004).
23
It is well established that the “public concern” test encompasses topics
related to sporting events and college athletics that garner broad public interest.
E.g., Washington v. Smith, 893 F. Supp. 60, 62 (D.D.C. 1995) (success of women’s
college basketball team was matter of public concern); Don King Prod., Inc. v.
Douglas, 742 F. Supp. 778, 783 (S.D.N.Y. 1990) (outcome of boxing title fight
was matter of public concern); Holt v. Cox Enter., 590 F. Supp. 408, 412 (N.D. Ga.
1984) (college sports rivalry was matter of public concern).
Plainly, the March 26, 2017 Elite Eight game itself, and Mr. Higgins’
officiating performance during that game, are matters of public concern. The
Higgins Plaintiffs themselves concede “the Game could be taken to be a ‘broader
public issue.’” (Appellants’ Br., PageID# 31.) The game was nationally televised
and viewed by millions of people around the world. Moreover, Mr. Higgins’
officiating was a subject of commentary by numerous media entities following the
game, not just KSR. Indeed, some of the same KSR internet posts that form the
basis for the Higgins Plaintiffs’ claims collected tweets and public comments from
other national sports personalities, such as national sports columnist Dan Wolken,
ESPN television analyst Jay Williams, and various former Kentucky and NBA
basketball players criticizing the officiating during the game. (Opinion, R. 65,
PageID# 739-40.)
24
4446682.v1
Likewise, the subject of unnamed third-party fans’ critical reactions to
Higgins’ officiating, including their conduct in leaving negative reviews for his
roofing business and making harassing phone calls, was a subject of broad public
interest. Media outlets all over the country reported on these actions in the days
immediately following the game.3
The Higgins Plaintiffs misconstrue Snyder insofar as they argue that the
speech at issue involved a purely private matter merely because it “refer[red] to
Plaintiffs ‘specifically’” and was a “personalized attack.” (Appellants’ Br.,
PageID# 30-31.) However, the fact that speech is directed at a specific individual
does not take it outside the scope of the “public concern” test. See, e.g., Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (parody targeting Jerry Falwell).
Snyder noted the fact that there was “no pre-existing relationship or conflict
between Westboro and Snyder that might suggest Westboro’s speech on public
matters was intended to mask an attack on Snyder over a private matter.” Snyder,
562 U.S. at 455. But the Court’s point was that the speech was not a mere pretext
to attack Snyder based on a personal dispute that was unrelated to any question of
public concern. Here too, there is no allegation that the speech was really
3 AP Report, NCAA Referee is Target of Death Threats After Kentucky Loss,

March 29, 2017 (http://www.espn.com/espn/wire/_/section/ncb/id/19031030) (last
visited, July 11, 2019); Hostility Toward Ref is Through the Roof, OMAHA WORLD
HERALD, 2017 WLNR 10376622, March 30, 2017; Sam Laird, March Madness Ref
25
motivated by any pre-existing purely personal dispute, unrelated to the widely
publicized issues concerning Mr. Higgins’ performance during a nationally
televised basketball game and the widespread reaction of unknown third parties to
that performance.
The KSR Defendants’ speech referred to Mr. Higgins specifically not
because it related to a “private matter” between the parties, but because it related to
Mr. Higgins’ televised officiating performance in a massively popular nationally
televised sporting event, and to widely-reported actions of third parties that were
directed toward the Higgins Plaintiffs specifically. It would have been impossible
to meaningfully comment on either of these subjects of obvious public concern
without referencing the Higgins Plaintiffs specifically.
Indeed, the suggestion that references to Mr. Higgins personally necessarily
render the speech “private” in nature ignores the fact that Mr. Higgins has gained
widespread public notoriety from his frequent and high-profile refereeing
assignments.4 Accord Fodor v. Berglas, No. 95 CIV 1153, 1995 WL 505522, at *5
(S.D.N.Y. Aug. 24, 1995) (“Courts have often classified some people, such as
sports figures, as limited purpose public figures based solely on their status,
Opens Up About Death Threats and Online Abuse from Bitter Fans, MASHABLE,
2017 WLNR 10589591, April 6, 2017.
4 Seth Davis, Up in the Air: John Higgins is one of the Nation’s Most Visible,
Wanted – and Loathed – Basketball Referees, SPORTS ILLUSTRATED, Jan. 28, 2016
26
position, or associations.”); Falls v. Sporting News Pub. Co., 714 F. Supp. 843,
847 (E.D. Mich. 1989) (sports writer for national publications and who made
television appearances qualified as a public figure). The Higgins Plaintiffs have
sought to benefit from that public notoriety, as indicated by Weatherguard’s use of
the name “Rooferees” to highlight its affiliation with a high-profile basketball
official. (Opinion, R. 65, PageID# 767.)
The Higgins Plaintiffs’ focus on the content of the calls and messages they
received from unidentified third-parties is similarly irrelevant to the legal question
in this appeal. (Cf. Appellants’ Br., PageID# 39-40.) The Higgins Plaintiffs make
no allegation that the KSR Defendants themselves made any threats or personally
harassing communications, so the content of these third-party communications
does not determine whether the KSR Defendants’ speech is protected. The
Higgins Plaintiffs reference a call made by Mr. Franklin to their business to
confirm whether the FBI was answering Weatherguard’s phones as had been
reported. (Id., PageID# 38.) But the Higgins Plaintiffs do not make any allegation
that Mr. Franklin’s call itself contained any threatening message or otherwise
addressed a purely private matter.
Thus, the fact that the speech at issue indisputably addressed matters and
individuals that were the subject of widespread public interest leads to the
(www.si.com/college-basketballs-most-recognized-referee-well-traveled-john-
27
inescapable conclusion that Snyder’s immunity from state-law tort suits applies
here.
2. The form and context of the KSR Defendants’ speech

further confirms it addressed matters of public concern.
Analysis of the “context” and “form” factors in the Snyder test also compels
the conclusion that the speech at issue addressed matters of public concern. In
Snyder, the fact that the protest occurred on a public street – the “archetype of a
traditional public forum” – and involved permitted picketing – another traditional
hallmark of protected speech – demonstrated that the form and context of the
speech was consistent with speech on matters of public concern. Snyder, 562 U.S.
at 456.
Similarly, all of the speech challenged by the Higgins Plaintiffs occurred on
the KSR radio program, the KSR website, or on the Hey Kentucky television
program. (1st Am. Compl., R. 55, PageID# 585.) Each of these media outlets
focuses on sporting events played by the University of Kentucky, college sports in
general (including pre- and post-game analysis), and fan reactions to those events.
As with the picketing in Snyder, television and radio broadcasts and internet
websites are all well recognized fora for protected discussion of matters of public
concern. This portion of the Snyder analysis likewise weighs in favor of finding
that the speech centered on a matter of public concern.
higgins).
28
Thus, all of the Snyder factors weigh heavily in favor of the KSR
Defendants, and the District Court properly held that their speech addressed
matters of public concern. Having satisfied the Snyder test, the Court should affirm
the District Court’s Judgment.
III. The District Court did not fail to follow the legal standards set forth in
Twombly or Iqbal.
There is similarly no merit to the Higgins Plaintiffs’ argument that the
District Court violated the legal standards for 12(b)(6) motions by reviewing
matters outside the pleadings or doing “its own research.” (Appellants’ Br.
PageID# 41-51.) The Higgins Plaintiffs do not identify any objectionable
materials that the District Court actually relied upon in making its decision, or that
were necessary to its reasoning. Moreover, the materials of which the Higgins
Plaintiffs complain were not outside the record; they were specifically referenced
and incorporated into the pleadings by the Higgins Plaintiffs themselves.
A. The Higgins Plaintiffs do not show the District Court actually

relied upon any material outside the record to reach its result.
First, the Higgins Plaintiffs do not identify any matter allegedly “outside the
record” that the District Court actually relied upon in reaching its decision. The
gravamen of the District Court’s decision was that the Higgins Plaintiffs failed to
plead any specific statements by the KSR Defendants that specifically encouraged
unlawful action, as required by prong one of the Brandenberg test. That decision
29
was not based on consideration of any additional statements outside the Amended
Complaint, it was based on what was lacking in the Amended Complaint.
Exclusion of any allegedly “outside the record” materials would not change the
fact that the Amended Complaint does not contain allegations sufficient to state a
claim for incitement.5
Similarly, the District Court did not rely on any materials outside the
pleadings in observing that the KSR Defendants’ statements, like the speech in
Nwanguma, included statements urging fans against engaging in tortious conduct
toward the Higgins Plaintiffs. As detailed above, see pp. 26-27, the Higgins
Plaintiffs’ own Amended Complaint contained numerous allegations to that effect,
including references to Mr. Jones’ on-air warning to his audience that contacting
Mr. Higgins could “constitute harassment,” Mr. Franklin’s statement that he did
not agree with attacking Mr. Higgins’ business, statements on the KSR website
that they do not “condone the activity from Big Blue Nation on John Higgins’
roofing company’s Facebook page,” and statements by Mr. Jones “literally
advising” the listeners of the radio program “not to call” Mr. Higgins. (1st Am.
Compl., R. 55, PageID# 587, 589, 590, 592 at ¶¶22, 31, 36, 42.)
5 Indeed, even if the District Court had relied on statements extraneous to the
pleadings (which it did not), this Court may affirm on any basis apparent from the
record, so the District Court’s Opinion would still be entitled to affirmance based
on what was lacking in the Amended Complaint.
30
The bulk of the materials about which the Higgins Plaintiffs complain
appear only in the Opinion’s fact section providing general background about the
case. (Opinion, R. 65, PageID# 734-48.) The Higgins Plaintiffs do not cite
anywhere in the Opinion where any of these materials are explicitly relied upon for
the District Court’s result. Nor do they identify any alleged “extra record”
materials that were necessary to support any of the District Court’s legal
conclusions. Mere background references to materials allegedly outside the record
in an Opinion cannot be grounds for reversal if none of those “extra record”
materials actually form the basis for the District Court’s decision.
B. The materials to which the Higgins Plaintiffs object were made

part of the record by their own pleadings.
The Higgins Plaintiffs’ argument fails for the additional reason that the
alleged “extra record” materials of which they complain were actually referenced
and cited in their own Amended Complaint, and therefore are a part of the record
and are appropriate for the District Court to consider in ruling on a Rule 12(b)(6)
motion.
This Court has long held that, when deciding a motion to dismiss pursuant to
Rule 12(b)(6), a court may draw on certain “document[s] referenced to in the
complaint and central to plaintiff’s claim.” Greenberg v. Life Ins. Co. of Va., 177
F.3d 507, 514 (6th Cir. 1999). This is true regardless of whether “a document [is]
formally incorporated by reference in a complaint” so long as “the complaint refers
31
to the document and the document is central to the claims.” Nixon v. Wilmington
Trust Co., 543 F.3d 354, 357 n.2 (6th Cir. 2008) (citing Greenberg, 177 F.3d at
514).
This rule also applies where the plaintiff’s complaint refers or directs the
court to a website. See A.G. by and through N.G. v. Cmty. Ins. Co., 363 F. Supp. 3d
834, 839 n.2 (S.D. Ohio 2019) (considering website referred to in complaint in
determining motion to dismiss); Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 608
(6th Cir. 2009) (review of website referred to in complaint and partially attached to
a complaint); Williams v. Scottrade, Inc., No. 06-10677, 2006 WL 2077588, at *7
(E.D. Mich. July 24, 2006) (considering website referred to in complaint in
determining motion to dismiss).6
Here, the Higgins Plaintiffs’ own pleadings, including their Amended
Complaint, contain numerous specific references, citations, and quotations to the
very same online news articles, blog posts, KSR radio program, and Hey Kentucky
6 Additionally, in construing motions to dismiss based on protected speech, courts

in the Sixth Circuit review all of the pleadings filed, including those that are moot
or attached to a motion for leave, to determine the whole record. See, e.g., Sheu v.
Detroit 90/90, No. 14-CV-14177, 2015 WL 2124624, at *11 (E.D. Mich. May 6,
2015) (considering an original and proposed amended complaint); Collins v. Allen,
No. 1:04-CV-572, 2006 WL 2505928, at *3 (S.D. Ohio Aug. 29, 2006)
(considering the live complaint and moot complaint). This is because federal courts
are obligated “to make an independent examination of the whole record” to assure
against a “forbidden intrusion on the field of free expression.” Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (citing New
York Times v. Sullivan, 376 U.S. 254, 285 (1964)).
32
television show that they now claim the District Court should not have reviewed.
Indeed, the Higgins Plaintiffs’ Original Complaint and Proposed Amended
Complaint even hyperlinked each of the Online Media to assist the District Court,
and future factfinders, in their consideration of the Higgins Plaintiffs’ allegations.
(Original Compl., R. 1, PageID# 7-17; Proposed Am. Compl., R. 44-3, PageID#
357-66, 369.)
For example, the Amended Complaint and other pleadings repeatedly
referred to and relied on the statements made by Mr. Jones on the “morning,
Tuesday, March 28, 2017” KSR radio program. (1st Am. Compl., R. 55, PageID#
591 at ¶38; Proposed Am. Compl., R. 44-3, PageID# 366 at ¶46; Original Compl.,
R. 1, PageID# 14-15 at ¶46.) The Higgins Plaintiffs contend that the comments
giving rise to their claims started at the very beginning of and continued
“throughout the two-hour Show.” (1st Am. Compl., R. 55, PageID# 591-92 at ¶¶38,
43; Proposed Am. Compl., R. 44-3, PageID# 366, 369 at ¶¶46, 55; Original
Compl., R. 1, PageID# 14-15, 17 at ¶¶46, 54.) The Higgins Plaintiffs therefore
made the two-hour radio program central to their claims. Thus, the Higgins
Plaintiffs specifically “direct[ed] the court’s attention to” the two-hour program
“upon which [they sought] to rely.” Bormuth v. Cty. of Jackson, 870 F.3d 494, 499
(6th Cir. 2017).
33
The Higgins Plaintiffs also specifically directed the District Court to
consider the same online articles and blog posts they now complain about on
appeal. (Compare Appellants’ Br. at PageID# 44-46, with 1st Am. Compl., R. 55,
PageID# 588-92 ¶¶24, 31, 35-36, and 45.) Therefore, the District Court did not
commit error in reviewing them. Nixon, 543 F.3d at 357 n.2.
Indeed, the Original Complaint and the Proposed Amended Complaint listed
the specific URLs for each of these articles and posts, including:
 The “No More John Higgins please” article published on March 27,
2017 at 11:00 pm (Original Compl., R. 1, PageID# 6-7 at ¶29;
Proposed Am. Compl., R. 44-3, PageID# 359 at ¶29.);
 The “Barleycorn’s Tuesday Top 10” article published on March 28,

2017 at 9:00 am (Original Compl., R. 1, PageID# 8-9 at ¶37; Proposed
Am. Compl., R. 44-3, PageID# 361 at ¶37.);
 The “Talkin’ Higgins, a new basketball target and more (Tuesday

Show Thread)” blog post published on March 28, 2017 at 9:58 am
(Original Compl., R. 1, PageID# 9-10 at ¶42; Proposed Am. Compl.,
R. 44-3, PageID# 362 at ¶42.);
 The “Kentucky fans are really lighting up John Higgins’ roofing

business” article published on March 28, 2017 at 10:00 am (Original
Compl., R. 1, PageID# 10-14 ¶43; Proposed Am. Compl., R. 44-3,
PageID# 362-66 at ¶43.); and
 The “Call John Higgins’ business and you get the FBI (or someone
pretending to be the FBI)” article published on March 28, 2017.
(Original Compl., R. 1, PageID# 17 at ¶56; Proposed Am. Compl., R.
44-3, PageID# 369 at ¶58.)
34
While the Amended Complaint did not contain URLs and hyperlinks, it contained
the same allegations identifying these same posts and articles. (1st Am. Compl., R.
55, PageID# 588-92 ¶¶24, 31, 35-36, and 45.) When the Higgins Plaintiffs have
introduced and relied upon these materials in their pleadings, they cannot complain
that the District Court opted to look at the materials they referenced.
Neither Nwanguma nor Bormuth offer any support for the Higgins Plaintiffs’
position. In both cases, this Court (not the District Court) declined to consider
online video materials that the plaintiffs asked the Court of Appeals to consider,
but that plaintiffs failed to reference in the District Court. Nwanguma, 903 F.3d
at 606 n.1; Bormuth, 870 F.3d at 500. These cases have no application here.
IV. The District Court did not err in dismissing the Higgins Plaintiffs’
conspiracy claims.
Because all of the Higgins Plaintiffs’ claims arise from speech on matters of
public concern, and no recognized exclusion to First Amendment protection
applies, all of their state tort claims are barred, as a matter of law. Snyder, 562 U.S.
at 451. The Higgins Plaintiffs cannot evade the protections of the First Amendment
by repackaging their “incitement” claim as a claim for “conspiracy” to promote
acts of defamation by unknown third parties. Thus, the Higgins Plaintiffs’
contention that the District Court erred by failing to separately analyze their claim
for “conspiracy” is without merit. Once the District Court concluded that the KSR
Defendants’ speech was protected and not subject to any exclusion under the First
35
Amendment, there was nothing further for the District Court to consider. Thus,
under any common law theory, all state-law tort claims were barred.
A. The District Court properly held that the First Amendment bars
the Higgins Plaintiffs’ “conspiracy” claim to the same extent as
their “incitement” claim.
For purposes of the First Amendment’s bar to tort liability for protected
speech, there is no legal distinction between the Higgins Plaintiffs’ “conspiracy”
claim and the other claims related to the KSR Defendants’ protected speech.
Indeed, Snyder specifically holds that where First Amendment tort immunity
applies, it bars all state tort claims under any theory, including specifically civil
conspiracy. 562 U.S. at 459.
In Snyder, as here, the plaintiffs complained that the Court of Appeals did
not analyze the alleged claims for “intrusion upon seclusion and civil conspiracy
… independently of the intentional infliction of emotional distress tort.” 562 U.S.
at 459. In that case, the Court of Appeals, after determining First Amendment
immunity applied, reversed the trial court judgment “wholesale” because it
improperly “attach[ed] tort liability to constitutionally protected speech.” Id. The
U.S. Supreme Court agreed with the approach, noting “[b]ecause we find that the
First Amendment bars Snyder from recovery for intentional infliction of emotional
distress or intrusion upon seclusion – the alleged unlawful activity Westboro
36
conspired to accomplish – we must likewise hold that Snyder cannot recover for
civil conspiracy based on those torts.” Id. at 460.
The same analysis applies here. Indeed, the Higgins Plaintiffs’ “conspiracy”
claim is identical to their “incitement” claim. The public statements that the
Higgins Plaintiffs (incorrectly) claim “incited” unlawful conduct by third parties
are the very same statements that they contend constitute the conspiratorial acts or
agreements to encourage unlawful defamation by the same third parties. The
Higgins Plaintiffs’ effort to re-label their claims as “conspiracy” rather than
“incitement” does not change the legal result in this case. The fact that the District
Court did not separately analyze the conspiracy claim is therefore immaterial, and
provides no basis for reversing the Judgment. Snyder, 562 U.S. at 459.
B. The Higgins Plaintiffs have not alleged that any of the KSR
Defendants’ statements constituted unprotected defamation.
The Higgins Plaintiffs’ efforts to now recast their “conspiracy” claims
specifically as claims for conspiracy to “defame” have no bearing on whether the
KSR Defendants’ speech is protected by the First Amendment. While defamation
accompanied by actual malice is not protected by the First Amendment, the
Higgins Plaintiffs have not alleged – and cannot allege – that any statements made
by the KSR Defendants falls within the defamation/actual malice exception, only
that the speech of unnamed third parties was potentially defamatory.
37
However, the issue is not whether the speech of anonymous third parties is
protected by the First Amendment, but whether the KSR Defendants’ speech is
protected. Whether the comments of unknown third parties constitutes unlawful
defamation has no bearing on the First Amendment’s protection for the KSR
Defendants speech. Accord Nwanguma, 903 F.3d 604.
Here, the Higgins Plaintiffs did not plead a claim for defamation against the
KSR Defendants, and specifically disclaimed any assertion that the KSR
Defendants’ speech constituted actionable defamation. In fact, on at least two
occasions, the Higgins Plaintiffs specifically told the District Court:
 “… if the plaintiffs were alleging defamation…, but that is not what

the plaintiffs allege here.” (Pls.’ Reply Mot. to Amend Compl., R. 48,
PageID# 542.); and
 “Plaintiffs do not bring a defamation claim.” (Pls.’ Resp. Supp. Mot.

to Dismiss, R. 57, PageID# 645.)
Nor could the allegations of the Amended Complaint establish an “actual
malice” defamation claim – or any defamation claim at all – against the KSR
Defendants. The Higgins Plaintiffs’ pleadings do not identify a single statement of
fact made by any of the KSR Defendants that they allege was false, much less that
was made with actual knowledge of its falsity or reckless disregard of its falsity as
would be required to remove the protection of the First Amendment. See New
York Times v. Sullivan, 376 U.S. 254 (1964); Hustler Magazine, 485 U.S. 46.
38
All of the statements alleged in the Amended Complaint are either
statements of opinion about Mr. Higgins’ officiating or statements accurately
reporting on the conduct of third parties toward the Higgins Plaintiffs. Neither
provides a basis for excluding the KSR Defendants’ speech from First Amendment
protection.
C. No “conspiracy to defame” or “conspiracy” claim lies.
The Higgins Plaintiffs’ effort to salvage their “conspiracy” claim also fails
for the independent reason that the Amended Complaint fails to allege the
existence of a conspiracy. To prevail on a claim for civil conspiracy, a plaintiff
must prove an unlawful or corrupt agreement between the alleged conspirators to
accomplish an unlawful act. People’s Bank of N. Ky. v. Crowe Chizek & Co., 277
S.W.3d 255, 261 (Ky. App. 2008). The presence or absence of adequate factual
allegations showing the existence of an agreement “is the essential element of a
conspiracy claim,” and courts have cautioned that more than “conclusory
allegations of agreement” are required. Mullins v. Marathon Petroleum Co., LP,
No. 12-CV-00108-HRW, 2013 WL 2285140, at *4 (E.D. Ky. May 22, 2013)
(quoting Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 113 (D.D.C.
2010)).
The Higgins Plaintiffs have not pled any facts that could establish the
existence of an agreement between the KSR Defendants and any of the unknown
39
third parties who committed any alleged torts. There is no allegation that any of
the KSR Defendants ever met or directly communicated in any way with any of
these third parties. The only allegation is that the KSR Defendants found the third-
party posts and comments on publicly available websites, after they were already
posted, and then read them on air. That is not an “agreement” for purposes of
conspiracy.
Moreover, civil conspiracy must be supported by another claim because “it
merely provides a theory under which a plaintiff may recover from multiple
defendants for an underlying tort.” Mullins v. Carver, No. 2015-CA-000655-MR,
2016 WL 4934593, at *22–23 (Ky. Ct. App. Sept. 16, 2016) (unpub. op.) (citing
Davenport's Adm’x v. Crummies Creek Coal Co., 184 S.W.2d 887, 888 (Ky.
1945)). The Higgins Plaintiffs have not pled any separate claim for defamation, as
would be required to hold the KSR Defendants liable for conspiring to aid in that
alleged tort. Nor do the tort claims actually pled by the Higgins Plaintiffs pierce
the First Amendment’s protection.
While the District Court did not rely upon (or need to rely upon) these
pleading failures in dismissing the Higgins Plaintiffs’ conspiracy claim, the District
Court may be affirmed on the basis of any grounds apparent from the record.
Wausau Underwrites Ins. Co. v. Vulcan Dev. Co., 323 F.3d 396, 403-04 (6th Cir.
2003). The KSR Defendants advanced these arguments in the District Court,
40
incorporating by reference the arguments raised in the motion to dismiss into the
supplemental motion to dismiss. (Supp. Mot. to Dismiss, R. 56, PageID# 607 at
n.2; Mot. to Dismiss, R. 40, PageID# 269-70.) Thus, the dismissal of the civil
conspiracy claims may be affirmed on this basis as well.
D. The District Court’s decision was not based on the Kentucky

Constitution – however, this Court may exercise its discretion to
consider it on appeal.
The District Court did not apply the Kentucky Constitution in rendering its
Opinion. (Opinion, R. 65, PageID# 774-776.) However, contrary to the Higgins
Plaintiffs’ assertions, this Court may exercise its discretion and consider the
Kentucky Constitution “to prevent manifest injustice and to promote procedural
efficiency” where “the proper resolution is beyond any doubt or where injustice ...
might otherwise result.” Taft Broad. Co. v. United States, 929 F.2d 240, 244 (6th
Cir. 1991) (internal quotation marks omitted). In the event the Court disagrees with
the District Court’s First Amendment reasoning below, it should find the Higgins
Plaintiffs’ claims are nonetheless barred by Kentucky’s Constitution.
CONCLUSION
For all the foregoing reasons, the KSR Defendants respectfully ask this
Court to affirm the District Court’s Judgment and assess costs of this appeal
against the Higgins Plaintiffs.
41
Respectfully submitted,
/s/ Jason Renzelmann
Griffin Terry Sumner

Jason Renzelmann
400 W. Market St., 32nd Floor
Louisville, KY 40202-3363
(502) 589-5400 Telephone
Counsel for Appellees
42
CERTIFICATE OF COMPLIANCE
This Brief complies with the word limit of Federal Rule of Appellate
Procedure 32(a)(7)(B)(i). This Brief contains 9619 words, excluding the parts of
the Brief exempted from the word court by Federal Rule of Appellate Procedure
32(f).
This brief complies with the typeface and type-style requirements of Federal
Rule of Appellate Procedure 32(a)(5) because the brief has been prepared in a
proportionally spaced typeface at 14 points.

Jason Renzelmann
43
CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2019 I electronically filed the foregoing
Brief of Appellees with the Clerk of the Court for the United States Court of
Appeals for the Sixth Circuit by using the CM/ECF system, which shall send
notification to all counsel of record.

Jason Renzelmann
44
DESIGNATION OF RELEVANT LOWER COURT DOCUMENTS
Record Description PageID#

Entry No. Range
1 Original Complaint with Jury Demand 1-28
40 Defendants’ Motion to Dismiss Plaintiff’s Complaint 250-73

And Argument in Support
44 Motion for Leave to File Amended Complaint 347-48
44-3 (Proposed) First Amended Complaint with Jury Demand 354-85
54 Minute Entry Order 583
55 First Amended Complaint with Jury Demand 584-605
56 Supplement to Defendants’ Motion to Dismiss and 606-16

Argument in Support
57 Plaintiffs’ Responsive Brief in Opposition to 617-51

Defendants’ Motion to Dismiss, as supplemented
61 Defendants’ Reply in Support of Their Motion to 661-71

Dismiss
62 Order directing parties to submit additional briefing 724

regarding Nwanguma v. Trump, 903 F.3d 604 (6th Cir.
2018)
63 Plaintiffs’ Supplemental Brief Regarding Nwanguma v. 725-29

Trump
64 Defendants’ Supplemental Brief Regarding Nwanguma 730-33

v. Trump
65 Memorandum Opinion and Order 734-79
66 Judgment 780-81
67 Appellants’ Notice of Appeal 782-83
45

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Case: 19-5409 Document: 20 Filed: 07/15/2019 Page: 1

IN THE UNITED STATES COURT OF APPEALS

JOHN M. HIGGINS; CAROL HIGGINS;

KENTUCKY SPORTS RADIO, LLC; MATTHEW H. JONES;

On Appeal from the United States District Court

BRIEF OF THE APPELLEES KENTUCKY SPORTS RADIO LLC,

Griffin Terry Sumner

Counsel for Appellees Kentucky Sports Radio LLC,

<YVWYFRX!XS!,XM!1NV'!='!+,'*%! Kentucky Sports Radio, LLC

April 23, 2019

W( Griffin Terry Sumner

CORPORATE DISCLOSURE ...............................................................................i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES .................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ....................................... viii

STATEMENT OF THE CASE ............................................................................... 1

A. Statement of Facts. .............................................................................. 1

B. Procedural History. ............................................................................. 6

SUMMARY OF THE ARGUMENT ..................................................................... 8

II. The KSR Defendants’ speech is protected by the First

A. The KSR Defendants’ speech does not fall within the

B. The KSR Defendants’ speech addressed matters of

1. The content of the speech was addressed to a

2. The form and context of the KSR Defendants’

A. The Higgins Plaintiffs do not show the District Court

B. The materials to which the Higgins Plaintiffs object

A. The District Court properly held that the First

B. The Higgins Plaintiffs have not alleged that any of the

C. No “conspiracy to defame” or “conspiracy” claim

D. The District Court’s decision was not based on the

CERTIFICATION OF COMPLIANCE WITH RULE 32(A) .......................... 43

CERTIFICATE OF SERVICE ............................................................................ 44

DESIGNATION OF RELEVANT LOWER COURT DOCUMENTS ............ 45

Acosta Orellana v. CropLife Int’l,

A.G. by and through N.G. v. Cmty. Ins. Co.,

Ashcroft v. Free Speech Coal.,

Bassett v. Nat'l Collegiate Athletic Ass’n,

Bell Atl. Corp. v. Twombly,

Bible Believers v. Wayne County, Mich.,

Bormuth v. Cty. of Jackson,

Bose Corp. v. Consumers Union of the United States, Inc.,

City Mgmt. Corp. v. U.S. Chem. Co., Inc.,

City of San Diego v. Roe,

Davenport's Adm’x v. Crummies Creek Coal Co.,

Dishnow v. Sch. Distd. of Rib Lake,

Don King Productions, Inc. v. Douglas,

Dorsey v. Nat’l Enquirer, Inc.,

Dun & Bradstreet Inc. v. Greenmoss Builders, Inc.,

Falls v. Sporting News Pub. Co.,

Greenberg v. Life Ins. Co. of Va.,

Hensley Mfg. v. ProPride, Inc.,

Holt v. Cox Enter.,

Hustler Magazine, Inc. v. Falwell,

Mullins v. Marathon Petroleum Co., LP,

New York Times v. Sullivan,

Nixon v. Wilmington Tr. Co.,

People’s Bank of N. Ky. v. Crowe Chizek & Co.,

Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co.,

Sheu v. Detroit 90/90,

Taft Broad. Co. v. United States,

Thurman v. Yellow Freight Sys., Inc.,

Time, Inc. v. Hill,

Wausau Underwrites Ins. Co. v. Vulcan Dev. Co.,

Williams v. Scottrade, Inc.,