Court: Being Portrayed As A Bigot By An NBA Team, Yelled At By An NBA Player Isn’t Actionable

Even though the blog is now often given over to Trump did nothing wrong" posts and suggestions that social media services engage in censorship" of so-called conservatives" (and don't even think about wandering into the comment section), Eugene Volokh's Volokh Conspiracy still surfaces some very interesting cases.

And this one has a lot going on. I'll try to summarize it as briefly as I can, but it will probably stretch the definition of brief." The background takes up a lot of the run time of this 42-page opinion [PDF] from the Utah Court of Appeals.

This is the brief summary the court has provided:

In March 2019, the Utah Jazz were playing a game against the Oklahoma City Thunder. Midway through the second quarter, Russell Westbrook, the Thunder's point guard at the time, had a verbal altercation with Shane Keisel, a Jazz fan who was sitting next to his girlfriend Jennifer Huff just a few rows up from the court. In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase on your knees." Westbrook responded profanely and aggressively, and his response was caught on video and then circulated on social media before the game had concluded. When Westbrook was asked about the altercation in a post-game interview, Westbrook said that he thought Keisel's initial comment to him was racial." Westbrook also said that Keisel's wife" had made a similar comment.

Somehow, this incident - which was clearly (and admittedly) instigated by Shane Keisel - became the basis for Keisel's libel/intentional infliction of emotional distress against the Utah Jazz and Russell Westbrook himself.

But there are a whole lot of interesting (and inadvertently comical) details left out of this summary. First, there's Keisel's statement to Westbrook, which could have been taken in multiple ways, none of them benign.

In a subsequent deposition, Keisel testified that he had said to Westbrook, Bro, sit down and ice your knees." Keisel also testified that Westbrook responded, This is heat. This is heat. Know what the fuck you're talking about if you're going to talk to me," to which Keisel said that he replied, Well, heat them up, you're going to be on them a lot later."

After that comment, Westbrook responded with one of his own, which was captured by another fan's cell phone.

I'm going to say one thing. I'll fuck him up. . . . I promise you. You think I'm playing. I swear to God. I swear to God, I'll fuck you up, you and your wife, I'll fuck you up, . . . I promise you on everything I love, on everything I love, I promise you.

Following this, Keisel was issued a warning card by arena security for directing remarks at Westbrook." Keisel returned to his seat, but not before holding the card above his head to the cheers of Jazz fans seated near him.

Then Keisel asked the fan to send him the recording of Westbrook yelling at him. He sent it to someone else and before the game had ended, the video had gone viral. Keisel participated in interviews with both a local station (KSL) and ESPN. In these interviews, Keisel claimed he'd said nothing inappropriate and that Westbrook had just went nuts." He also pushed the narrative that Westbrook was abusive" towards fans of opposing teams.

Westbrook was interviewed as well. It was this interview that exposed Keisel as the provocateur, with Westbrook stating the on your knees" comment sounded racial" to him. Keisel, however, told KSL he'd said nothing offensive to Westbrook.

Keisel was then contacted by the General Counsel of the Utah Jazz, which was investigating the confrontation. When speaking to a lawyer, Keisel decided to start telling the truth.

During this phone interview, Keisel said that he had told Westbrook to sit down and . . . heat [his] knees because [he was] going to be on them later." Keisel said that what he meant was that Westbrook would be using his knees later to win the game." But Keisel also admitted that Westbrook could have taken it as, oh, yeah I was telling him that he was going to suck some dick or whatever. I get that there could be sexual type of things. But racism? Come on, man."

The details of this interaction were confirmed by other fans, who spoke to the team's administration about the incident. Every one of them stated that Keisel had told Westbrook to get on [his] knees." The investigation concluded with Keisel receiving a lifetime ban from the arena.

His ban was referenced in the team's press release (which did not use his name). An email sent to season ticket holders about the ban pointed out the team had zero tolerance for hate speech, racism, sexism, or homophobia." A statement made by the team's owner to the crowd at the next home game contained a single sentence that forms the basis for Keisel's defamation claims:

This should never happen. We are not a racist community.

After dining out on the fake story of Westbrook's supposedly unprovoked attack for a couple of days, public opinion swung the other way once the whole story was out. According to Keisel, he started receiving hateful and threatening phone calls and emails" and was terminated from his position at a local car dealership. He also was targeted by negative customer reviews and fake social media accounts that made him appear to be a racist.

The lower court tossed the defamation claims against Russell Westbrook and the Utah Jazz. As for Westbrook, the court said the statement made by Westbrook stated his opinion of the things Keisel said to him and, at no point, did he use Keisel's name (something he could not have possibly known at that point). Opinion is, of course, protected by the First Amendment. And it was clearly opinion because Westbrook made that much explicitly clear in his statement, which is reprinted in full in the opinion:

[F]or me that's just completely disrespectful, ah to me, ah, I think it's racial.

For me." To me." I think." All of these clearly indicate Westbrook is expressing his opinion about what Keisel said to him. Even Keisel admitted the same phrase could be taken as sexual, indicating several plausible interpretations were possible by whoever heard what was said.

The same goes for the team. Statements made about seemingly racist behavior (again, without referencing Keisel directly or by name) were statements of opinion based on the information the team had gathered during its investigation. Once again, opinions are protected speech, even when issued by commercial organizations.

Now, there's a reason the court included Russell Westbrook's entire statement. Because if it hadn't, the only version would have been Keisel's version, which was selectively edited and rearranged to make things look a lot more libelous.

In his opening brief... Keisel provided us with a block quote that purported to be Westbrook's statement-but Keisel's proffered quote made several alterations to what Westbrook had actually said. For example, while Westbrook made a few references to his family" in sentences that were spread out among his other comments, Keisel took the references to Westbrook's family and lined them up together at the beginning of the block quote, and he did so without giving us any indication that those statements were being presented out of sequence. Also, in his actual statement, Westbrook said I'm just not going to take disrespect for ah, my family" a single time in the middle of the statement. In Keisel's recounting, however, this was the very first thing that Westbrook said (thus seeming to place this assertion into a position of more prominence), and Keisel then included that same sentence a second time later in the block quote, thus falsely suggesting that Westbrook had said it twice. There were other changes too, most notably in rearranging the sequencing of various sentences from Westbrook's statement.

These alterations may seem like a trifling matter, and Keisel's counsel tried to downplay them at oral argument. But in the context of this case, they're not trifling at all. For example, one of the pieces of Keisel's defamation-by-implication claim is the assertion that Westbrook falsely claimed that Keisel had said something about Westbrook's family. But Keisel has now rearranged the very statements that Westbrook made that referenced his family. At the risk of stating the obvious, a sentence's meaning will naturally be derived in no small measure from the sentences that surround it. By splicing and then rearranging what Westbrook said, Keisel misrepresented the text and indeed the nature of Westbrook's statement. And we can't help but note the irony: Keisel claims that Westbrook defamed him by saying false things, but Keisel provided this court with a false account of what it was that Westbrook said while advancing that claim on appeal.

Wow. You definitely shouldn't do that, no matter what kind of case you're bringing. But when judges start talking about irony, you've clearly fucked up.

Speaking of fucking up, Keisel's arguments are so desperate he actually makes it appear as though he would have preferred being referred to as a homophobe.

The March 12 press release said nothing aboutracism. Rather, it simply said that Keisel was being banned for excessive and derogatory verbal abuse directed at a player." As noted, Keisel admitted to General Counsel that his comments to Westbrook could have been interpreted as sexual type" insults. He then admits in his brief that his words to Westbrook were somewhat capable of being misinterpreted" as being sexually" derogatory, and he faults the Jazz for falsely label[ing] the incident racial instead of homophobic." Given his own admissions, no reasonable person could think there was anything false, much less defamatory, about this press release.

There's a lot of inept litigating going on here. But the most baseless of the assertions are the intentional infliction of emotional distress claims against Westbrook, predicated solely on Westbrook's I'll fuck you up" response to Keisel's get on your knees" provocation.

Keisel and Huff repeatedly assert that they felt physically threatened by Westbrook's outburst. But when confronted with claims like these, a court must be capable of distinguishing between actual threats of violence and something that was merely profane posturing. Here as elsewhere, context is key. As recognized by the district court, Westbrook's outburst occurred in the presence of security personnel and thousands of spectators," and Westbrook was separated from Keisel and Huff by several rows of spectators. As also recognized by the district court, Keisel and Huff then remained in the Arena to watch the rest of the game," a choice that belies any suggestion that they really thought there was a real risk that Westbrook would make good on his threat."

A complete loss for Keisel. Consecutive shutouts, to be more accurate.

This doesn't look like someone seeking actual redress for actual harms. This looks like someone whose gravy train swiftly morphed into a shitshow and now wants someone else to foot the bill for his self-inflicted wounds. Even if this had been a closer call, Keisel still would have lost. Having granted interviews with two new outlets - one of them with international reach - he thrust himself into the public spotlight, making it impossible to proceed with the lower libel standards afforded to truly private citizens.

The whole opinion is a fun read and a pretty wild ride. If nothing else, it would make a useful appendix for The Perils of Being an Asshole," a book someone should write just for people like Mr. Keisel.