By Joshua D. Wolson
Special to the Legal
With the NCAA tournament upon us, we will no doubt see images of coaches' demonstrative reactions to referees’ calls. All of this will take place under an intense microscope of press and public scrutiny, just as it always has. But now, a new dynamic adds to the mix. Members of the press are expected not only to write their articles, but also to "Tweet" interesting tidbits in something approximating real time. However, a lawsuit filed this week highlights the difficulties of doing so.
NBA referee Bill Spooner filed suit this week in the U.S. District Court for the District of Minnesota (also home to Brady v. NFL) against the Associated Press and AP reporter Jon Krawczynski over a Tweet from Krawczynski during an NBA game. During the game, Minnesota Timberwolves coach Kurt Rambis complained about a call that gave the Houston Rockets free throws. After an exchange, Rambis reportedly asked Spooner how the Timberwolves would get the points back. Krawczynski tweeted about Spooner’s response: "Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks." Spooner denies promising a makeup call.
The case raises two interesting legal issues. First, can what happens on an NBA court can ever be a private matter? Can an NBA referee ever conduct his activities outside of issues of public controversy? Or are major sporting events -- which are, after all, nothing more than a public exhibition -- inherently matters of public concern?
The answer to that question, of course, determines whether a plaintiff must show "actual malice," meaning knowing falsity or reckless disregard for the truth. Spooner claims to conduct his activities "outside of, and uninvolved with, any issues of public controversy."
At first blush, it seems Spooner will have a hard time avoiding the conclusion that the Tweet in question touched on an issue of public concern. In his complaint, Spooner claims the Tweet accused him of making a false call -- a form of game fixing. And, according to Spooner, the issue of game fixing is highly sensitive for NBA referees because the public still remembers Tim Donaghy's admission two years ago that as a referee, he bet on games and made calls that affected the margin of victory. Donaghy pled guilty to federal criminal charges as a result -- surely an issue of public concern.
Spooner's claim that he is a private figure seems fundamentally in tension with his allegations that the influence of the Donaghy affair makes Krawczynski's Tweet particularly sensitive.
The suit also raises a second issue: are defamation standards different for Tweets than for other forms of speech? Twitter is, by its nature, a constrained form of speech. Some might argue that Tweets are inherently less reliable than other forms of communication, and Twitter users understand that to be the case. Certainly, Twitter lends itself to a speak-now-and-ask-questions-later mentality. Those quick hits make it difficult to do proper research, but they also might make it difficult to make a statement knowing its falsity, or even with reckless disregard of the truth.
Thus, while the Twitterverse might not have its own standard, its fundamental nature -- at this time of year, one might say its "madness" -- will be important to evaluating Spooner's suit and other claims of defamatory Tweets.
Joshua D. Wolson is a partner in the litigation department at Dilworth Paxson. He can be reached at 215-575-7295 or firstname.lastname@example.org.