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Sixth Circuit: Criticizing Refs Is Protected Speech, Even If Lots Of Sports Fans Are Assholes

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Sportsball fans are the worst.That conclusion is immediately clear in this Sixth Circuit Court of Appeals First Amendment decision [PDF]. It opens with the court commenting on the lifelong antagonism present in Fans v. Refs, which is pretty much what this case is about.

Devoted sports fans are not known for their evenhandedness in judging referees. The sign of a true fan, it might even be said, is the hopelessness of attaining such equanimity. Veteran referee John Higgins surely was no stranger to this phenomenon before March 26, 2017. But what he experienced after that day’s game was extraordinary all the same.
John Higgins had the unfortunate duty of presiding over a close Kentucky Wildcats loss. After the game, he was criticized by the team's coach, who claimed the referee had pretty much single-handedly cost his team the game. The officiating was described as "putrid" by Matthew Jones on Kentucky Sports Radio. Jones also mentioned Coach Calipari had stated the team got "jobbed" by the officials, most prominently John Higgins.Die-hard sports fans are unreasonable human beings. The ones that provided the impetus for Higgins' lawsuit were some real fuckwits.
Soon after the game, fans discovered that Higgins owned a roofing business: Weatherguard Roofing. Its URL is www.rooferees.com, a portmanteau of “roof” and “referee.” A video posted by an anonymous user, titled “John Higgins[’] Sabotage of Kentucky,” depicted Higgins standing by a truck bearing the insignia of his business. In text at the bottom of the video, it suggested that viewers “[w]rite a review of him here[:] http://www.facebook.com/ rooferees.” Id. at 4.
This grabbing of pitchforks was not-so-mildly encouraged by Kentucky Sports Radio broadcasters, who claimed they didn't condone what was happening even as they pointed listeners and website readers to the ongoing destruction of Higgins' other livelihood by angry fans.
The day after the game, Jones devoted airtime to Higgins’ refereeing. He read one email from a listener who contemplated “leaving a bad review on John Higgins’ roofing Yelp page.” Jones responded that this would be a “bad thing to do” and would constitute “harassment.” Jones read another email from a listener who was “against trolling John Higgins” until he “saw the name of his roofing company.” Jones laughed that Higgins went with the name “rooferees.” Even so, he did not “think [the fans] should troll the guy.”That same day, Drew Franklin, a writer for Kentucky Sports Radio’s website, published a series of articles criticizing Higgins’ calls. He followed up the next morning with an article commenting that Higgins’ roofing business was “getting CRUSHED on its Facebook page.” He stated that he wouldn’t “link the page” because he disagreed with “attacking [Higgins’] side hustle.” He nevertheless posted a link to the video for those who could “stand to watch it.” More uncharitable posts followed. In one, he described it as a “busy day on KSR” of “contin[uing] the hatred of John Higgins.” In another, he commented that “Kentucky fans are really lighting up John Higgins’ roofing business,” while reproducing some of the fake and abusive reviews that fans posted.Franklin added that Kentucky Sports Radio “do[es] not condone the activity” occurring on Higgins’ pages. But at the same time, he and others reproduced at least a dozen comments posted there. One of those comments suggested Higgins’ roofing business “takes money under the table from the mafia in Vegas.” Another wondered if Higgins used “illegal labor, substandard materials, and shady accounting practices.” Yet another accused Higgins of “hit[ting] on [the commenter’s] 13[-]year[-]old son.”
Yep. Some real garbage people being egged on by other garbage people trying to claim the high ground while swimming around in the internet sewer. This was the end result.
The trolling campaign took a toll on Higgins’ business. It received over 3,000 phone calls in the two days after the game, with some numbers calling 40 or 50 times a day. The calls crashed the voicemail system and made it hard for customers to get through. Higgins received many false requests for service. Reputational harm followed. Weatherguard Roofing went from being the top-rated roofing business in Omaha, Nebraska (with 4.8 stars out of 5 on Google), to the worst-rated (with 1.2 stars out of 5) based on the 181 false reviews placed. (The North Carolina fans apparently did not respond by improving Higgins’ ratings.) Higgins closed his Facebook page to stem the bleeding. Threats also came to Higgins and his family. The business received over 800 threatening calls, and Higgins’ home phone received over 30 calls. At least a dozen provided the basis for a criminal investigation. When Higgins refereed a Final Four game that year, a bodyguard accompanied him.
Higgins sued Kentucky Sports Radio and its two commentators, alleging a number of things, including intentional infliction of emotional distress and tortious interference with his roofing business. His amended complaint added more allegations, including negligence, harassment, and engaging in harassing communications.Unfortunately for Higgins, the First Amendment protects the speech the sportscasters engaged in. Sports is a matter of public concern, right up there with politics. Limiting speech about refereeing would violate the First Amendment.
Public commentary about sports, some have said, is no less protected than commentary about “economics [or] politics.” Regan v. Time, Inc., 468 U.S. 641, 678 (1984) (Brennan, J., concurring in part and dissenting in part, joined by Marshall, J.). That sports coverage implicates public concerns is “amply demonstrated by the elaborate sports section in every daily newspaper published in this nation” and by the “numerous periodicals . . . exclusively devoted to sports.” Time, Inc. v. Johnson, 448 F.2d 378, 383 (4th Cir 1971).
That doesn't mean all the criticism is correct and even-handed. Far from it. But as biased and subjective as it is, it is still protected. The court throws a bit of shade at every fan who blames the refs for their team's loss.
Criticizing umpires serves other purposes, perhaps even healthy ones. It allows fans to suppress two unwelcome thoughts: that their team deserved to lose or that a lot of chance drives the fortunes of a team in a single-elimination tournament. How much better, after a dispiriting end-of-season loss, to be consoled by the thought that your team was robbed.
The court points out hating on the refs is a time-honored tradition, dating back to the phrase "Kill the Umpire!" in 1888's chart-topping Casey at the Bat. And General Douglas MacArthur once stated our boys fought and died to protect the "freedom to boo the umpire."As the court notes, this protected booing can get out of hand, as it did here. That doesn't mean the broadcasters are any less protected by the First Amendment. Even when they pull their waders up and hike into the raw sewage generated by toxic fans.
Just as commentators must be able to discuss the quality of the officiating, they must be free to comment on the fans’ reaction to the officiating. That means Kentucky Sports Radio could fairly discuss the game—and could freely criticize those who participated in it, including the referees, the coaches, the players, the fans, and for that matter the commentators. For Kentucky sportscasters, Higgins’ calls and the public’s reactions to them may have been the biggest story of the news cycle. Sure, some Kentucky fans likely tuned in to Kentucky Sports Radio’s coverage of Higgins solely for the schadenfreude. But even if its discussion served only that purpose, the discussion’s “inappropriate or controversial character” would not influence our analysis as to “whether it deals with a matter of public concern.”
Higgins argued that even if that commentary was protected, it was legally wrong for the commentators to bring up his roofing business. The court points out the broadcasters did not attack the business on their own. They only commented on fans' actions and statements. It also points out Higgins' ref work and his roofing business were not inseparable, as evidenced by Higgins' decision to name his business "Rooferees." This is a pretty pointed rebuttal of this argument:
[Higgins] cannot seek damages from pundits who called attention to the existence of a business that he promoted with his status as a referee before that became a liability.
The court further points out the malicious Kentucky fans began targeting Higgins' business before the radio station got involved. Even if the commentators arguably made things worse by reporting on the actions of these fans, that reporting is protected by the First Amendment. While the commentators did almost nothing to douse the flames of referee resentment, they did not unlawfully encourage unlawful behavior.
Kentucky Sports Radio did not advocate for Higgins’ harassment. Nor did its disavowal of the fans’ conduct smack of irony—usually. Yes, it did a poor job dissuading listeners from mischief. But a party cannot be sued for incitement merely because it failed to condemn the behavior of others with sufficient firmness or clarity.
The court has sympathy for Higgins. But it does not have a ruling in his favor. The First Amendment protects the broadcasters, who did not actually engage in the attacks on his business. Kentucky Sports Radio was the biggest target, but it is not the correct target for Higgins' allegations.
Perceived missteps in the public eye these days all too often unleash torrents of anonymous online hate. One can hardly blame the victim of such onslaughts for wanting redress. Or blame him for taking aim at the only members of the mob with faces: pundits like Jones and like Franklin who at times took too much glee in reporting on the misery of others. But a gulf lies between commenting on harassment and causing it. And in that respect, the First Amendment protects the rights of sports radio talk show hosts just as it protects the rights of presidents. Those who step into the public limelight, even temporarily, must face the hazard that sometimes comes with it.
There's no line that can be drawn that will give Higgins what he wants. That sucks but the other options are what? Exempting referees from criticism? Exempting referees with sideline businesses from criticism? None of those fly. If Higgins wants to make someone pay for the damage done to his business, he'll have to start tracking down some of the Kentucky fans who said something actionable. And there won't be many of those.As has been pointed out frequently, speech has consequences. Normally, this means someone saying stupid things should expect criticism for saying these things. But it also has consequences for those on the receiving end of things like this. Speech can damage people and their reputations without wandering out of the First Amendment's protections. But just because you can do something doesn't mean you should. These garbage fans should have limited themselves to directing their anger at the (subjectively) blown calls, not the man's outside business. But they're not smart people or wise people. They're spiteful people who are unable to exercise restraint. They're the kind of people that make other people say stupid stuff about regulating speech. Let's not encourage assholes. They're going to cost us our freedoms.

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Clearview Is Handing Out Access To Dozens Of UK Entities, Setting Up Accounts For Congressional Reps

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Clearview continues to make itself unpopular with the general public even as it increases its user base. Supposedly, it has worked with over 900 law enforcement agencies at this point, although it's unclear how many are actually using the software and how many have just been given trial logins.Internal documents given to BuzzFeed show a number of federal agencies (FBI, ATF, Secret Service, CBP) have performed tens of thousands of searches of Clearview's scraped-together database. But it's not just law enforcement agencies that are using Clearview's facial recognition app. The documents showed a number of private companies have also at least test-driven the software, including Macy's, Walmart, Kohl's, and Albertsons.The company continues to expand into other countries. The documents show Clearview has customers in 26 countries, including notorious human rights violators like Saudi Arabia and UAE.Over in the UK, Clearview is being used by more public and private entities -- another strange assortment of users that makes up a small part of the 2,900 institutions the company has handed its software to.

The National Crime Agency and Metropolitan Police are among a number of leading organisations across the UK that have registered users with controversial facial recognition technology firm Clearview AI, according to documents reviewed by BuzzFeed News.The technology also had users at a number of other police forces, private investment firms, the Ministry of Defence, and a charity founded by Harry Potter author J.K. Rowling, the data shows.
The Met Police already has its own facial recognition tech -- one that has consistently underperformed for years. According to a spokesperson, Clearview's proprietary database of 3 billion photos scraped from the web isn't being used in conjunction with the live tech already deployed by the agency. Other UK law enforcement agencies listed in the documents as having performed searches all stated they had used the software "on a trial basis" and are not currently using the tech to search for criminal suspects.The same comments were made by some private financial firms, which claimed it was demoed for them by Clearview, but they weren't currently using the software. A few refused to provide any comment at all, leaving that question open.The searches run by J.K. Rowling's charity also appear to have been part of a demo.
The charity told BuzzFeed News that a staff member had tried out the software once at an event and Clearview was not being used by Lumos in its work.A spokesperson for Lumos said: “A member of Lumos staff attended an anti-trafficking event last year to which a number of NGOs were invited as well as a representative from Clearview AI.“During the event the representative from Clearview AI demonstrated the software which we understand was being used in the US by law enforcement to tackle child exploitation.
Back in the United States, Clearview continues its aggressive expansion, preemptively creating accounts for Congressional reps and administration officials.
Clearview AI, the secretive facial recognition company whose software has been used by more than 2,200 organizations around the world, created accounts for the offices of four members of Congress, including one whom President Donald Trump is nominating for director of national intelligence.Clearview data reviewed by BuzzFeed News includes an unused account for Texas Rep. John Ratcliffe, a Republican whose eventual nomination to DNI was announced by Trump on Friday via tweet. Trump has yet to formally send the nomination to the Senate.In Clearview documents viewed by BuzzFeed News, the entry for “Congressman John Ratcliffe Staff” indicates that that user had performed zero log-ins and zero searches, meaning that Clearview had created an account that was never used. A spokesperson for Ratcliffe told BuzzFeed News that Clearview staff had met with Ratcliffe’s staff.
All of these appear to have been set up when staffers met with Clearview reps. Only one rep's office -- Mark Walker's -- appears to have run any searches.In other news on the homefront, Apple has disabled Clearview's iOS app for violating the company's rules on distribution.
In distributing its app for Apple devices, Clearview, which BuzzFeed News reported earlier this week has been used by more than 2,200 public and private entities including Immigration and Customs Enforcement (ICE), the FBI, Macy’s, Walmart, and the NBA, has been sidestepping the Apple App Store, encouraging those who want to use the software to download its app through a program reserved exclusively for developers. In response to an inquiry from BuzzFeed News, Apple investigated and suspended the developer account associated with Clearview, effectively preventing the iOS app from operating.
The company's CEO says it's working with Apple to get the app reinstated, claiming Clearview did not actually violate the rules since the app cannot be used without "proper authorization." But that doesn't explain why Clearview is demoing its "internal use application" to hundreds of potential customers and facilitating that access by setting up accounts for anyone who wants to try the app out. Apple's Enterprise Developer program forbids the distribution of internal apps to users outside of the developer's company.If Clearview stays ousted, it's going to hurt its plans for expansion. One of the selling points of Clearview's tech is that it's available in app form -- portable and usable by anyone who owns a smartphone. Linking the app to 3 billion face photos and other personal information scraped from the web makes it almost irresistible. Taking a sizable chunk of phone users out of the equation will slow the company's roll. But I imagine it will find a way to get some version of its app back into the store -- and into the hands of uncurated user base.  

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posted at: 12:00am on 03-Mar-2020
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