Can statements calling someone's comment racial support defamation claims? Keisel v. Westbrook Explained

In a high-profile case arising from a verbal altercation at a Utah Jazz game, the Utah Court of Appeals reaffirmed that characterizing someone’s statement as “racial” constitutes protected opinion that cannot support a defamation claim. The decision in Keisel v. Westbrook provides important guidance on the boundaries between actionable defamation and constitutionally protected speech.

Background and Facts

During a March 2019 NBA game between the Utah Jazz and Oklahoma City Thunder, fan Shane Keisel made an “on your knees” comment to Thunder player Russell Westbrook. Westbrook responded with profanity, and the exchange was recorded and circulated on social media. In a post-game interview, Westbrook stated that Keisel’s comment was “racial” in nature. The Jazz investigated the incident, banned Keisel for life, and made public statements about fan conduct. Keisel and his girlfriend Jennifer Huff sued both Westbrook and the Jazz for defamation, false light, and infliction of emotional distress.

Key Legal Issues

The central issue was whether Westbrook’s characterization of Keisel’s comment as “racial” could constitute actionable defamation. The court also addressed whether the Jazz’s public statements about the incident were defamatory, and whether Westbrook’s in-game outburst could support emotional distress claims.

Court’s Analysis and Holding

The court held that Westbrook’s statement “I think it’s racial” was constitutionally protected opinion. The court noted that statements of opinion are “incapable of being verified and therefore cannot serve as the basis for defamation liability” because they “embody ideas, not facts.” The court emphasized Westbrook’s use of subjective qualifiers like “for me,” “to me,” and “I think,” which clearly marked his assessment as opinion rather than fact. Similarly, the Jazz’s statements were deemed protected opinion about the appropriateness of fan conduct.

Practice Implications

This decision reinforces that characterizations of speech as racist, while potentially harmful to reputation, generally constitute non-actionable opinion. Practitioners should note that even when such characterizations relate to specific conduct rather than general accusations, they may still receive First Amendment protection. The court also rejected attempts to circumvent defamation protections by recasting speech-based claims as other torts, emphasizing that “non-defamation torts based on speech must meet First Amendment requirements.”