When should First Amendment interests in free expression shield speakers from civil liability for harm to others caused by third parties who allegedly followed or otherwise were inspired by the speakers' words? Two recent federal court opinions - Higgins v. Kentucky Sports Radio, LLC involving post-game coverage by sports commentators about a college basketball referee, and Stricklin v. Stefani pivoting on a singer's words to her concert audience - illustrate similar yet distinct methodologies for analyzing this important question. The speech of the commentators in Higgins allegedly "incited the harassment" by listeners and readers of referee John Higgins and his roofing business in what the court aptly called a "trolling campaign." The words of Gwen Stefani in Stricklin urging concert goers in the back of a pavilion "to come down a little closer" allegedly triggered a throng of people to rush toward the stage and, in the process, caused plaintiff Lisa Stricklin to break a leg when she was "trampled and forcibly pushed into a wall." Blending words with injuries wrought by those who heard them, and mixing at times constitutional concerns for protecting speech with tort law interests, the 2020 decision by the United States Court of Appeals for the Sixth Circuit in Higgins and the 2018 ruling by United States District Court Judge Robert J. Conrad, Jr. in North Carolina in Stricklin are the focus of this Article.
Part I of this Article focuses on the Sixth Circuit's analysis of the First Amendment-protection issue in Higgins. Part II then turns to Judge Conrad's different approach to that same question in Stricklin. Part III follows by comparing the two methodologies, and it considers whether the choice of a different tactic in each case might have affected its outcome. Finally, Part IV concludes by synopsizing the analysis and suggesting that both frameworks have benefits and drawbacks.
Clay Calvert, The Power of Public Concern and First Amendment Values: Insulating Speech in Sports and Entertainment from Tort Liability for Others' Actions, 20 Va. Sports & Ent. L.J. 1 (2021)