The Utah Court of Appeals has spoken: an athlete’s opinion on what connotes racist rhetoric is protected free speech. In a significant legal ruling that underscores the balance between sportsmanship, the right to free expression, and the duty of professional athletes to maintain their composure, the Utah Court of Appeals recently confirmed a lower Utah state court ruling granting summary judgment in favor of Russell Westbrook and the Utah Jazz in a lawsuit brought against him and the team by a heckling fan, Shane Keisel. This decision, while confirming the First Amendment rights of athletes and representatives of professional sports teams, also clarifies the limits of acceptable fan conduct in professional sports venues.

In December 2019, Keisel and his wife filed a complaint in the Utah Fourth District Court, Provo Department against the Utah Jazz and Russell Westbrook asserting multiple causes of action, including defamation, false light, intentional infliction of emotional distress, and negligent infliction of emotional distress. The suit was filed after the two fans were banned from the arena by the Jazz after the team conducted an internal investigation, which determined that Keisel and his wife had violated the arena’s Code of Conduct.

The basis for each cause of action were comments made by Westbrook and representatives from the Jazz. Westbrook was interviewed when a video of the altercation, which Keisel insisted should go viral, surfaced. Westbrook stated:

“Obviously, everybody’s talking about the same video, but the realization of it is, how it started was a young man and his wife in the stands told me to get down on my knees like you used to, and for me, that’s just completely disrespectful. To me, I think it’s racial….”

The Jazz, following their decision to ban Keisel and his wife, published a press release stating that “the Utah Jazz will not tolerate fans who act inappropriately. There is no place in our game for personal attacks or disrespect.” On March 14, 2019, the Jazz emailed its season ticket holders, reiterating its Code of Conduct and stating, “We do not permit hate speech, racism, sexism, or homophobia.” That night, the owner of the Jazz, Larry H. Miller, addressed the arena, stating, “We are not a racist community.”

Following the publicity surrounding the altercation, Keisel was terminated from his employment at a local dealership, and his now-wife, Jennifer Huff, who was working as a house cleaner and furniture refinisher, lost work because of the incident.

The Lower Court Decision

In May 2021, following motions by both parties for summary judgment, the lower court dismissed all of Keisel and his wife’s claims against Westbrook and the Jazz.

Defamation Claims

The defamation claims against Westbrook were dismissed on two grounds. The court concluded that no reasonable listener could have understood the statement to be directed at Keisel or Huff, as the ‘man and his wife’ to whom Westbrook referred would have had access to other news sources over which Westbrook had no control, referring to a local news station and ESPN, on which Keisel appeared discussing the altercation. The court also concluded that “whether a person is racist or whether a statement is racial is a matter of opinion that cannot be verified as true or false.” Because it was Westbrook’s opinion that the statement was racist, the court concluded that it could not give rise to a claim of defamation. The court dismissed the defamation claim against the Jazz on similar grounds, stating, “calling a person racist or attributing racist statements to him is not actionable in defamation.”

The Remaining Claims

Because these additional claims were also based on the same statements at issue in the defamation claims, the court concluded that Keisel and Huff cannot circumvent First Amendment protections by rephrasing their failed defamation claims as non-defamation torts. The court clarified that the non-defamation torts must first meet the First Amendment requirements, which, in this case, they did not. Further, because the statements on racism were opinions and cannot be objectively verified as true or false, “as a matter of law, a person cannot be negligent as to the falsity of such a statement.”

Finally, the emotional distress claim based on Westbrook’s in-game statements was dismissed because 1) there was security present, and 2) Keisel and his wife were not in close proximity to Westbrook so they could not have reasonably expected Westbrook to act on his threats. Furthermore, the court concluded that “a reasonable speaker [Westbrook] could not have realized that the in-game statement would cause emotional distress.”

Keisel and Huff’s Appeal


The Court of Appeals agreed with the lower court’s reasoning for dismissing the defamation claim against Westbrook, stating that “Westbrook’s post-game statement was a constitutionally protected statement of opinion” because opinions cannot be verified as either true or false, and they are not subject to claims of defamation. The Court noted that Keisel himself acknowledged that his statement could have been interpreted as sexual in nature, and because the implicit subtleties of context could allow Westbrook to understand this as a sexual slur, they could also allow Westbrook to understand it as a racial slur. Additionally, the court pointed to Westbrook’s qualifiers that his statement was subjective in nature. In his comments, Westbrook stated qualifiers such as “for me,” “to me,” and “I think.” Any reasonable person would understand these statements to be his opinion alone.

The Court recognized that Keisel may have vaguely attempted to raise a claim of defamation by implication but ultimately found these arguments to be unpersuasive. Westbrook, in his statement, clearly addressed the abuses by NBA fans generally, his experiences as a whole in Utah, and was not referring to Keisel when discussing protecting his family. The court found the remaining arguments by Keisel unpersuasive and affirmed the lower court’s grant of Westbrook’s motion for summary judgment on the defamation claims.

Similarly, the Court affirmed the lower court’s grant of summary judgment as to the claim of defamation against the Utah Jazz. The Court agreed that the statements made in the emails and in addressing the arena were statements of pure opinion, incapable of being verified because opinions embody ideas and not facts, and thus cannot serve as the basis for defamation liability. The Court concluded that Westbrook, Miller, and the Jazz had a constitutionally protected right to express their opinions.

The Remaining Claims

The remaining claims, as they pertain to the same comments that the defamation claims are based on, necessarily fail, according to the Court of Appeals. The Court explained that there is substantial overlap between defamation claims and speech-based tort claims. The Court concluded that where statements at issue in the defamation claim are found to be constitutionally protected opinions, the remaining claims based on the same statements must fail as a matter of law.

Finally, the Court addressed Westbrook’s liability for the in-game outburst following Keisel’s heckling. The Court of Appeals agreed with the District Court that Westbrook’s outburst, while offensive, did not – as a matter of law – rise to the level of “extreme or outrageous.” Importantly, the Court clarified that in emotional distress claims, the statements must be considered in the context in which they occurred. Here, the Court stated that “society has unfortunately come to expect some amount of intemperate behavior” at professional sporting events. The Court held that because the comments were made in the presence of security personnel and thousands of spectators and because Keisel and his wife remained in the arena following the altercation, they could not have actually believed they were at risk of Westbrook following through on his threats.

The Court found the remainder of Keisel’s arguments unpersuasive and affirmed the District Court’s grant of summary judgment in Westbrook and the Jazz’s favor in its entirety.

The Keisel v. Westbrook decision represents a significant legal milestone that highlights the complex intersection of First Amendment protected free speech and expression, sportsmanship, and the legal rights of professional athletes and fans. In this case, the Utah Court of Appeals played a pivotal role in clarifying the boundaries of acceptable conduct within sports arenas and the protection of free speech rights guaranteed by the Constitution.

Ultimately, this legal outcome has broader implications for the sports world, highlighting the delicate balance between the rights of athletes to compete without undue distraction or harassment and the rights of fans to express themselves within the boundaries of acceptable conduct. The case provides potentially valuable legal precedent for future disputes in the realm of sports and the intersection of free speech and acceptable fan conduct in professional athletics.