Keisel v. Westbrook

2023 UT App 163
THE UTAH C OURT OF APPEALS
S HANE K EISEL AND JENNIFER HUFF ,
Appellants,
v.
R USSELL WESTBROOK III AND JAZZ BASKETBALL I NVESTORS I NC . DBA
THE U TAH J AZZ ,
Appellees.
Opinion
No. 20210414-CA
Filed December 29, 2023
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 190401976
Scott R. Hoyt, Joseph G. Pia, John P. Mertens,
Adam L. Hoyt, and Ciera C. Archuleta,
Attorneys for Appellants
Matthew L. Lalli, Cameron J. Cutler, and Victor D.
Vital, Attorneys for Appellee Russell Westbrook III
Jeffrey J. Hunt, David C. Reymann,
Michael S. Anderson, and Victoria Rose Luman,
Attorneys for Appellee Jazz Basketball Investors Inc.
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
TENNEY, Judge:
¶1 	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

Keisel v. Westbrook
20210414-CA 	2 	2023 UT App 163
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.
¶2 	The Jazz quickly investigated the altercation, determined
that Keisel had violated a code of conduct that governs fan
behavior, and banned Keisel from attending its home games for
life. 	Before 	the 	next 	home 	game, 	then-owner 	Gail 	Miller
addressed the crowd and said, among other things, “We are not a
racist community.”
¶3 	Keisel 	and 	Huff 	sued 	both 	Westbrook 	and 	the 	Jazz,
alleging defamation, false light, intentional infliction of emotional
distress, and negligent infliction of emotional distress. The district
court granted summary judgment for both defendants. Keisel and
Huff now appeal. For the reasons set forth below, we affirm the
district court’s decision.
BACKGROUND0F
1
The Verbal Altercation, the Video, & the Post-Game Statements
¶4 	In 2019, Keisel was a Utah Jazz fan who attended eight to
ten home games a year. Keisel was employed by a car dealership
1. “When reviewing a grant of summary judgment, we recite the
disputed facts in a light most favorable to the nonmoving party.”
Young v. Fire Ins. Exch., 2008 UT App 114, ¶ 19, 182 P.3d 911
(quotation simplified). Unless otherwise noted, our recitation is
(continued…)

Keisel v. Westbrook
20210414-CA 	3 	2023 UT App 163
in Orem, Utah, and he regularly sat in his employer’s seats, which
were located just three rows off the floor near the opposing team’s
bench. Keisel was also enrolled in a pilot training program.
¶5 	On March 11, 2019, the Jazz hosted the Oklahoma City
Thunder for a basketball game at its home arena. Keisel attended
that game with Huff, who was his girlfriend at the time.1F
2 As a
condition of admission, every fan was subject to “the NBA & Utah
Jazz Fan Code of Conduct” (the Code of Conduct). The Code of
Conduct prohibited fans from engaging in “disruptive behavior,
including using foul or abusive language or obscene gestures.”
Arena security personnel enforced the Code of Conduct and were
authorized to issue warning cards or eject fans for violations of it.
¶6 	Westbrook was a point guard for the Thunder at this game.
During the second quarter, Westbrook was sitting on the bench
with packs of some sort wrapped around his knees when he
began exchanging words with Keisel. A security camera recorded
video footage of the exchange, though it didn’t capture any audio.
This 	footage 	showed 	Keisel 	standing, 	looking 	directly 	at
Westbrook, and then speaking to him while making a downward
motion with his right hand as he sat down. It also showed
Westbrook 	immediately 	reacting 	to 	Keisel’s 	comments 	and
gesture, with Westbrook pointing and apparently yelling at
drawn from facts that were deemed undisputed by the district
court or for which we see no dispute in the record.
2. Keisel and Huff filed suit together and have proceeded together
on appeal as well. Keisel and Huff inform us in their brief that
they’ve since married, but they provide no record support for that
assertion. Regardless, it’s undisputed that Huff was Keisel’s
girlfriend at the time of this incident (though, as will be discussed,
Westbrook mistakenly assumed that they were married). And we
note that their apparent post-altercation nuptials don’t impact the
legal issues presented on appeal in any way.

Keisel v. Westbrook
20210414-CA 	4 	2023 UT App 163
Keisel. 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.”
¶7 	A 	fan 	who 	was 	sitting 	nearby 	recorded 	Westbrook’s
response to this on his cell phone. This video captured Westbrook
saying,
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.
¶8 	Security personnel from both the Jazz and the Thunder
(collectively, Security) responded and spoke with Keisel shortly
after this verbal altercation ended. Keisel told Security that he had
told Westbrook, “you’re going to need ice on your knees later, or
something to that effect.” Security issued a warning card to Keisel
for 	“using 	Westbrook’s 	name 	and 	directing 	remarks 	at
Westbrook,” and Security directed Keisel to not make any further
remarks to players. As Keisel returned to his seat, he displayed
the warning card above his head to the other fans in his section,
many of whom cheered him on.
¶9 	The fan who recorded the exchange on his phone texted the
video to Keisel after Keisel returned to his seat. This video
captured Westbrook’s response to Keisel, but it does not identify
Keisel by name or show Keisel or Huff at all. After receiving the
video, Keisel forwarded it to a “good buddy” of his who was
something of “a social media influencer.” Keisel told his friend,
“Make this go viral bro.” Keisel also forwarded the video to his
cousin 	(Cousin). After Cousin informed Keisel that he had

Keisel v. Westbrook
20210414-CA 	5 	2023 UT App 163
forwarded 	the 	video 	to 	KSL 	(a 	local 	news 	station), 	Keisel
responded, “Nice! Let’s make it go viral!!” And after Cousin
informed Keisel that he had posted the video to Twitter, Keisel
replied, “I love it!”
¶10 	Cousin soon informed Keisel that KSL wanted to interview
Keisel, to which Keisel responded, “Lol!! I’ll talk to them.” A KSL
reporter texted Keisel directly, asking Keisel if he would agree to
an 	on-camera 	interview about 	the 	confrontation 	and 	“what
provoked [Westbrook’s] response.” Keisel replied that he’d “be
happy to talk to” the reporter. After the game, Keisel participated
in interviews with both KSL and ESPN. In his ESPN interview,
Keisel denied saying “anything inappropriate” to Westbrook, and
he claimed that Westbrook “just went nuts.” Keisel also said he
wanted the exchange to be seen because Westbrook “needs to be
exposed.” Keisel later testified that he participated in the KSL
interview because he “wanted the public to know about Russell
Westbrook’s behavior and his abusiveness towards fans.” Keisel
voluntarily disclosed his name to both KSL and ESPN. During the
interview with KSL, Keisel disclosed Huff’s first name. After the
interviews, Keisel texted Cousin, “I got interviewed by KSL and
ESPN post game!”
¶11 	Westbrook was also interviewed after the game. When
Westbrook was asked about the verbal altercation with Keisel,
Westbrook said that Keisel had told him to “get down on [your]
knees like you used to.” As will be discussed at length in this
opinion, Westbrook then said, “[T]o me, ah, I think it’s racial.”
Westbrook’s full statement about the incident was recorded, and
it was as follows:
Obviously, um everybody’s talkin’ about the same
video but, the realization of it is, is how it started
was, um a young, young man and his wife in the
stands told me, ah, to get down on my knees like
you used to, and for me that’s just completely

Keisel v. Westbrook
20210414-CA 	6 	2023 UT App 163
disrespectful, ah to me, ah, I think it’s racial, um, I
think it’s just inappropriate in the sense of, um,
there is no protection for the players. Um, I think
there, there are a lot of great fans in around the
world that like to come to the game and enjoy the
game. And there are people that come to the game
to say mean, disrespectful thing about me, my
family, um. For many years, man, I’ve done all the
right things. I’ve never done anything to hurt or
harm anybody, um, I’ve never been in any trouble,
I never fought a fan. Um, been in the league 11 years,
clean slate, humble. Um, I take whatever, all the
criticism from everybody. I’ve been doing the same
thing for years. Um and for me, um, disrespect
would 	not 	be 	taken 	from 	me. 	Um, 	I’m, 	I’m
completely, ah, just sit back sometime take it like
that. That’s just one video, but throughout the
whole game, throughout, since, since I’ve been here,
especially here in Utah, every time I come here there
a lot of disrespectful things are said and um, and for
me, I’m, I’m just not going to continue to take
disrespect for ah, my family. Um, and I just think
that there’s got to be something done, there’s got to
be some consequences for those type of people, ah,
that come to the game just to say and do, ah,
whatever they want to say. And um, I don’t think
it’s fair, ah, to the players, not just to me, but I, I
don’t think it’s fair to the players. Um, and if I had
to do it over again, I would say the same exact thing
because, I, I, truly, ah, will stand up for myself, for
my family, for my kids, for my wife, for my mom,
for my dad every single time. Um, I expect anybody
else to do the same. Um, so that’s kinda where I’m
at with the whole situation. Um, as for beating up,
um, his wife, I’ve, I’ve never put my hand on a
woman, 	I 	never 	will. 	Um, 	never 	been 	in 	any

Keisel v. Westbrook
20210414-CA 	7 	2023 UT App 163
domestic violence ah, before, never have before, but
once he said the comment, his wife repeated it, the
same thing to me as well. So that’s kinda how that
started. I know you guys only got the tail end of the
video, but the start of the video, um, is way more
important and way more disrespectful than what
you guys heard, so appreciate you all.2F
3
¶12 	The next morning, Keisel contacted a reporter at KSL and
publicly defended his conduct. Keisel denied making any racial
comments.
The Jazz’s Investigation, Imposition of Discipline, & Public Response
¶13 	The Jazz’s general counsel (General Counsel) quickly led
an 	investigation 	by 	the 	team 	of 	the 	Keisel/Westbrook
confrontation. The purpose of this investigation was to determine
whether Keisel had violated the Code of Conduct. As part of this
investigation, 	General 	Counsel 	watched 	the 	security 	video
referenced above. General Counsel also conducted a recorded
telephone interview with Keisel the day after the incident. 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
3. We note that in a usual case, we would likely have made some
typographical 	corrections 	to 	a 	quote 	such 	as 	this 	one
(appropriately bracketed, of course), and we may also have
removed the um’s and ah’s, which are most commonly regarded
as non-substantive verbal fillers. Since much of this case turns on
the precise things that Westbrook said, however, and since
Westbrook’s brief includes the fillers in its recitation, we present
the quote in its full form as presented to us and confirmed by our
review of the audio in the record.

Keisel v. Westbrook
20210414-CA 	8 	2023 UT App 163
would be using his knees later to “win the game.”3F
4 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.”
¶14 	After the game, several fans who had been seated near
Keisel contacted the Jazz’s administration indicating that they had
observed the confrontation. As part of the investigation, General
Counsel requested that these fans submit written statements
about what they observed. Five fans submitted written responses
the morning after the confrontation. Their accounts of what they
heard Keisel say were as follows:
Fan 1: “Get on your knees like you always do to
service your team mates [sic].”
Fan 2: “Well get on your knees like you’re used to.”
Fan 3: “You better sit down with those old knees” or
“get on your knees like you’re used to.” Fan 3 also
said that he “understood the comment to be a sexual
vulgarity,” and he testified in a deposition that the
comment was offensive to him.
Fan 4: “Keep taking care of your knees because
you’re used to being down on your knees.”
4. During a subsequent deposition, Keisel admitted that he had
first told Westbrook, “Bro, sit down and ice your knees,” and that
after Westbrook responded to him, Keisel had then said, “Well,
heat them up, you’re going to be on them a lot later.” This echoed
the admissions he made to General Counsel in this interview.

Keisel v. Westbrook
20210414-CA 	9 	2023 UT App 163
Fan 5: Heard a “derogatory sexual remark” toward
Westbrook.4F
5
¶15 	Based on the information collected in the investigation,
General Counsel determined that Keisel had violated the Code of
Conduct. The Jazz then permanently banned Keisel from the
team’s arena. In a letter that was sent to Keisel the day after the
confrontation, General Counsel informed Keisel that he was being
banned 	for 	violating 	the 	Code 	of 	Conduct 	by 	making
“inappropriate, obscene and offensive statements” to Westbrook.
General Counsel later testified that in making this determination,
the team did not make a more particular judgment about whether
Keisel’s 	comment 	to 	Westbrook 	was 	racist 	or 	homophobic.
Instead, the Jazz just made a determination that Keisel’s comment
had violated the Code of Conduct.
¶16 	Later that day, the Jazz issued a press release (the March 12
press release) to the Jazz’s standard press-release list, which
included mostly local media and journalists. The press release
read as follows:
The 	Utah 	Jazz 	and 	Larry 	H. 	Miller 	Group
announced today a permanent ban of the fan who
engaged in the inappropriate conversation with the
Oklahoma City Thunder’s Russell Westbrook last
night at [the arena]. The ban is effective immediately
and includes all arena events.
The 	organization 	conducted 	an 	investigation
through video review and eyewitness accounts. The
ban is based on excessive and derogatory verbal
5. Another fan sitting nearby later testified at a deposition that he
heard Keisel tell Westbrook: “You’re going to be on your knees
begging like you’re used to.”

Keisel v. Westbrook
20210414-CA 	10 	2023 UT App 163
abuse directed at a player during the game that
violated the [Code of Conduct].
The 	Utah 	Jazz 	will 	not 	tolerate 	fans 	who 	act
inappropriately. There is no place in our game for
personal attacks or disrespect.
“Everyone deserves the opportunity to enjoy and
play the game in a safe, positive and inclusive
environment,” said Steve Starks, president of the
Utah Jazz. “Offensive and abusive behavior does
not reflect the values of the Miller family, our
organization and the community. We all have a
responsibility to respect the game of basketball and,
more importantly, each other as human beings. This
has always been a hallmark of our incredible fan
base and should forever be our standard moving
forward.”
¶17 	Multiple local and national news outlets reported on the
Keisel/Westbrook altercation in the days that followed. Some of
the 	coverage 	moved 	beyond 	this 	incident 	to 	recount 	past
incidents involving other Jazz fans, including incidents in which
fans had made racist comments. For example, a video circulated
showing another fan repeatedly shouting “Here we go, boy” at
Westbrook during a past playoff game. The Salt Lake Tribune
reported on that episode and the Jazz’s subsequent lifetime ban of
that fan, linking that event to Keisel’s lifetime ban for the
altercation 	at 	issue 	here.5F
6 	Sports 	Illustrated 	reported 	on 	the
Keisel/Westbrook altercation and its aftermath as well.
6. Eric Walden, Utah Jazz Issue Another Lifetime Ban, to the Fan
Caught Calling Russell Westbrook ‘Boy’ During 2018 Playoffs, The
Salt 	Lake 	Tribune 	(March 	17, 	2019, 	2:39 	P.M.),
(continued…)

Keisel v. Westbrook
20210414-CA 	11 	2023 UT App 163
¶18 	On March 14, 2019, the Jazz sent an email (the March 14
email) to its season ticket holders that read:
In light of recent events, we want to address fan
behavior and how we choose to express the passion
we all have for the Utah Jazz. . . . The Utah Jazz will
strictly enforce the [Code of Conduct] with zero
tolerance. . . . We do not permit hate speech, racism,
sexism, or homophobia. We also do not allow
disruptive behavior, including bullying, foul or
abusive language, or obscene gestures. Violators
may be subject to ejection and other penalties,
including a lifetime ban.
¶19 	Later that night, Miller, who was the team’s owner at the
time, made a statement to the crowd before a home game (which
was the team’s first home game since the March 11 game against
the Thunder). Miller wrote the statement herself, though Jazz
management had encouraged her to make some statement about
the incident. Miller’s statement was as follows:
As the owner of the Utah Jazz, I feel it’s important
for me to take this opportunity to express some
thoughts and concerns about the unfortunate event
at 	the 	game 	Monday 	night. 	I 	am 	extremely
disappointed that one of our “fans” conducted
himself in such a way as to offend not only a guest
in our arena but also me personally, my family, our
organization, the community, our players and you,
the best fans in the NBA.
This should never happen. We are not a racist
community. We believe in treating people with
https://www.sltrib.com/sports/2019/03/15/utah-jazz-issue-anothe
r/ [https://perma.cc/3CE6-YD4X].

Keisel v. Westbrook
20210414-CA 	12 	2023 UT App 163
courtesy and respect as human beings. From time to
time individual fans exhibit poor behavior and
forget their manners. Some disrespect players on the
other [teams]. When that happens, I want to get up
and shout STOP!
We have a code of conduct in this arena. It will be
strictly enforced.
Everyone who comes here, visiting teams included,
deserves the right and the expectation to be treated
with dignity at all times. When bad incidents, like
Monday night, happen it not only affects the player
it’s directed at, it also affects our players. Other
teams are not our enemies, they are our competitors.
Competition is a good thing. It allows players to
showcase their talents. It allows fans to encourage,
appreciate, cheer for and enjoy those who share
those talents with us.
We have been stewards of this team for 34 years. We
love sharing it with all of you and receiving your
support. It is also important that you support our
players as citizens of our community and treat them
and their families with respect. They have chosen to
become part of our community and they make us
richer with their diversity.
My heartfelt request to all of you is that from this
time forward, we will all take pride in holding
ourselves 	and 	those 	around 	us 	to 	the 	highest
standard of decency.
Use your energy cheering OUR players with your
honest, sincere enthusiasm rather than degrading or
demeaning players on the opposing team. No one
wins when respect goes away.

Keisel v. Westbrook
20210414-CA 	13 	2023 UT App 163
Let’s be the supporting fans our players know and
deserve. Thank you and GO JAZZ.
Adverse Impact of the Publicity on Keisel & Huff
¶20 	In the wake of the altercation, the car dealership at which
Keisel worked received many hateful and threatening phone calls
and emails. Keisel was terminated from his position there, and he
was soon removed from his pilot training program as well. Huff
had been working as both a housecleaner and as a furniture
refinisher, and she later stated that she lost work as a result of the
incident.
¶21 	Keisel also received hateful and threatening text messages,
emails, and customer reviews. Fake social media accounts were
created in his name that depicted Keisel as having made racist
comments. Both Keisel and Huff later claimed they experienced
“severe emotional distress” because of the altercation and its
aftermath.
Procedural History
¶22 	In December 2019, Keisel and Huff filed a civil complaint
against both Westbrook and the Jazz, asserting causes of action
for defamation, false light, intentional infliction of emotional
distress, and negligent infliction of emotional distress. The details
of the claims will be discussed as needed below. In brief, the
claims alleged:
• 	defamation against Westbrook based on his post-game
statement in which he either expressly said or “implied”
that Keisel and Huff “had made statements that were racist
. . . in nature”;
• 	defamation against the Jazz based on their press releases
and 	public 	statements 	that 	implied 	that 	“the 	alleged
offensive behavior was racism or racist commentary”;

Keisel v. Westbrook
20210414-CA 	14 	2023 UT App 163
• 	false light against both Westbrook and the Jazz based on
Westbrook’s post-game statement and the Jazz’s email,
press release, and public statement, which, according to the
complaint, suggested that Keisel and Huff had “acted as
racists” or had “made racist statements”; and
• 	intentional infliction of emotional distress and negligent
infliction of emotional distress against both Westbrook and
the 	Jazz 	based 	on 	Westbrook’s 	in-game 	statement,
Westbrook’s 	post-game 	statement, 	and 	the 	Jazz’s
“corroborat[ion]” of Westbrook’s post-game statement that
Keisel and Huff “had made racist comments.”
¶23 	After discovery was conducted and completed, Westbrook
and the Jazz filed separate motions for summary judgment. The
district court heard arguments in April 2021. In May 2021, the
court issued a written ruling dismissing all of Keisel and Huff’s
claims.
¶24 	With respect to the defamation claims from Keisel and
Huff against Westbrook, the court granted Westbrook’s motion
for summary judgment on essentially two grounds. First, it
concluded that at the time Westbrook made his post-game
statement, “no hearer could have reasonably understood the
statement to be directed at Keisel and Huff, who were just two of
thousands of fans” at the arena. The court reasoned that because
the “only way a hearer could identify Keisel or Huff as the ‘man
and his wife’ to whom Westbrook referred would have been
access to 	other 	news sources (KSL 	and 	ESPN) 	over 	which
Westbrook had no control,” the statement was “not actionable in
defamation.” 	Second, 	the 	court 	separately 	concluded 	that
“whether a person is racist or whether a statement is racial is a
matter of opinion which cannot be verified as true or false,” and
it accordingly concluded that the “racial meaning of Keisel’s
statement cannot be objectively verified as true or false.” Thus,
because Westbrook had “plausibly concluded that the statement

Keisel v. Westbrook
20210414-CA 	15 	2023 UT App 163
was racial,” the court concluded the statement could not give rise
to a defamation claim.
¶25 	With respect to Keisel’s defamation claim against the Jazz,
the court found that the March 12 press release, the March 14
email, 	and 	Miller’s 	speech 	did 	concern 	Keisel 	and 	were,
“cumulatively and in context, capable of defamatory meaning.”
Even so, the court determined that “whether any of the statements
attributed to Keisel and Huff were in fact racist cannot be verified
as true or false” and that this was therefore “a question of
opinion.” The court thus concluded that “calling a person racist
or 	attributing 	racist 	statements to 	him 	is 	not 	actionable 	in
defamation.”
¶26 	This left the claims for false light, intentional infliction of
emotional distress, and negligent infliction of emotional distress
against both Westbrook and the Jazz. The court noted that these
causes of action were based on the same statements that were at
issue in the defamation claims, namely, Westbrook’s post-game
statement, the Jazz’s email and press release, and Miller’s speech.
The court concluded that “Keisel and Huff cannot do ‘an end-run
around’ [First Amendment] protections by recasting their failed
defamation claim[s]” against Westbrook and the Jazz “in the form
of non-defamation torts” because “‘non-defamation torts based
on speech must meet First Amendment requirements.”
¶27 	With respect to the emotional distress claims based on
Westbrook’s in-game statement during the altercation, the court
concluded that “Westbrook’s in-game statement—while coarse
and offensive—[did] not as a matter of law rise to the level of
extreme and outrageous conduct.” The court concluded that
because the statements were made during an NBA game “in the
presence of security personnel and thousands of spectators,”
because Keisel and Huff were not in close physical proximity to
Westbrook, and because Keisel and Huff remained in the arena
after the altercation to watch the rest of the game, there “never

Keisel v. Westbrook
20210414-CA 	16 	2023 UT App 163
was any real risk that Westbrook would make good on his threat.”
The court also concluded that “a reasonable speaker could not
have realized that the in-game statement would cause emotional
distress.”
¶28 	And with respect to the emotional distress claims against
the Jazz, the court particularly concluded that the “published
statements of which Plaintiffs complain—that they are racists or
made 	racist 	comments—constitute 	opinions,” 	and 	“[b]y
definition, statements of opinion cannot be objectively verified as
true or false.” For this reason, the court concluded that “as a
matter of law a person cannot be negligent as to the falsity of such
a statement” and that the emotional distress claims against the
Jazz were nonactionable.
¶29 	Keisel and Huff timely appealed.
ISSUES AND STANDARD OF REVIEW
¶30 	Keisel and Huff raise several challenges to the district
court’s decision granting summary judgment to Westbrook and
the Jazz. “We review the district court’s grant of summary
judgment 	for 	correctness 	and 	accord 	no 	deference 	to 	its
conclusions of law.” Davidson v. Baird, 2019 UT App 8, ¶ 24, 438
P.3d 928 (quotation simplified).
ANALYSIS
¶31 	Keisel and Huff challenge the district court’s decision
granting summary judgment on their defamation claims against
Westbrook, 	Keisel’s defamation 	claim 	against 	the 	Jazz, 	and
the remaining claims (including false light, intentional infliction
of 	emotional 	distress, 	and 	negligent 	infliction 	of 	emotional
distress). As explained below, we agree with the district court on
all fronts.

Keisel v. Westbrook
20210414-CA 	17 	2023 UT App 163
I. Defamation Against Westbrook
¶32 	Keisel’s defamation claim against Westbrook was based on
Westbrook’s post-game statement, wherein Westbrook stated that
what Keisel had said to him was “completely disrespectful” and
he thought it was “racial.” Keisel argues that the district court
erred in concluding that Westbrook’s post-game statement was
not “of or concerning” Keisel (or Huff, for that matter), and he
further 	argues 	that 	the 	court 	erred 	in 	determining 	that
Westbrook’s post-game statement was not actionable because it
was 	a 	statement 	of 	opinion. 	We 	disagree 	with 	Keisel’s
contentions.6F
7
¶33 	“Under Utah law, a statement is defamatory if it impeaches
an individual’s honesty, integrity, virtue, or reputation and
thereby exposes the individual to public hatred, contempt, or
ridicule.” West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah
1994). “At its core, an action for defamation is intended to protect
an individual’s interest in maintaining a good reputation.” Id. “A
publication is not defamatory simply because it is nettlesome or
embarrassing to a plaintiff, or even because it makes a false
statement about the plaintiff.” Id. at 1009 (quotation simplified). A
plaintiff must establish that the statement at issue is “more than
sharp 	criticism,” 	that 	it 	instead 	“damaged” 	the 	plaintiff’s
“reputation . . . in the eyes of at least a substantial and respectable
minority of its audience.” Id. “To state a claim for defamation,” a
plaintiff must therefore “show that defendants published the
statement 	concerning 	him, 	that 	the 	statements 	were 	false,
defamatory, and not subject to any privilege, that the statements
7. This portion of our analysis is primarily focused on Keisel’s
defamation claim against Westbrook, which was the driving force
behind much of this litigation. Our resolution of it also applies
and largely resolves Huff’s defamation claim as well. There are
some aspects of Huff’s defamation claim that might potentially be
distinct, however, and we address those in footnote 9.

Keisel v. Westbrook
20210414-CA 	18 	2023 UT App 163
were published with the requisite degree of fault, and that their
publication 	resulted 	in 	damage.” 	Id. 	at 	1007–08 	(quotation
simplified); see also Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212 P.3d 535.
Moreover, because “the existence of defamatory content is a
matter of law, a reviewing court can, and must, conduct a context-
driven assessment of the alleged defamatory statement and reach
an independent conclusion about the statement’s susceptibility to
a defamatory interpretation.” O’Connor v. Burningham, 2007 UT
58, ¶ 26, 165 P.3d 1214.
¶34 	As noted, the district court gave two reasons for dismissing
the 	defamation 	claim 	against 	Westbrook. 	The 	first 	was 	its
conclusion that “no hearer could have reasonably understood
[Westbrook’s] statement to be directed at Keisel and Huff, who
were just two of thousands of fans” in the arena. Keisel and Huff
challenge this, arguing that although Westbrook didn’t personally
name them, “given the publicity of the incident, their family,
friends, and peers could readily identify them.” By contrast,
Westbrook maintains that because he “did not know Keisel’s and
Huff’s identities and certainly did not identify them in referring
to a ‘young man and his wife in the stands,’” not even their
“family and closest friends would be able to identify them based
solely on Westbrook’s Post-Game Statement at the time it was
made.” We need not resolve this dispute, however, because we
agree with the district court’s second reason for dismissing the
claim: Westbrook’s post-game statement was a constitutionally
protected statement of opinion.
¶35 	In reviewing a grant of summary judgment, we ordinarily
“review a district court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness,” viewing “the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” R.O.A. Gen. Inc. v. Salt Lake
City Corp., 2022 UT App 141, ¶ 13, 525 P.3d 100 (quotation
simplified). “Defamation merits a departure from the standard
treatment, however, primarily because it never arrives at court

Keisel v. Westbrook
20210414-CA 	19 	2023 UT App 163
without its companion and antagonist, the First Amendment, in
tow.” O’Connor, 2007 UT 58, ¶ 27. “Because the existence of
defamatory 	content 	is 	a 	matter 	of 	law,” 	our 	review 	is
“nondeferential,” leaving “no room for indulging inferences in
favor of the nonmoving party in the district court.” Id. ¶¶ 26–27.
“To accommodate the respect we accord its protections of speech,
the First Amendment’s presence merits altering our customary
rules of review by denying a nonmoving party the benefit of a
favorable interpretation of factual inferences.” Id. ¶ 27. The
determination of whether a particular statement qualifies as
opinion thus presents a question of law for the court to decide. See
West, 872 P.2d at 1008.
¶36 	As noted, one of the elements of a defamation claim is that
the statement at issue must be “false.” Id. at 1007; see also Jacob,
2009 UT 37, ¶ 21. By extension, a statement can only be actionable
as defamation if it is capable of being proven to be true or false.
And by further extension, a plaintiff is “definitionally unable” to
satisfy this falsity element “with regard to statements of pure
opinion, because such statements are incapable of being verified
and therefore cannot serve as the basis for defamation liability.”
Davidson v. Baird, 2019 UT App 8, ¶ 31, 438 P.3d 928 (quotation
simplified). The reason that “opinions are inherently incapable of
verification” is that “they embody ideas, not facts.” West, 872 P.2d
at 1014 (quotation simplified). “Because expressions of pure
opinion 	fuel 	the 	marketplace 	of 	ideas 	and 	because 	such
expressions are incapable of being verified, they cannot serve as
the basis for defamation liability,” id. at 1015, and “the Utah
Constitution provides an independent source of protection for
expressions of opinion,” id. at 1013. The First Amendment to the
United 	States 	Constitution 	likewise 	protects 	statements 	of
opinion, and this protection is even more pronounced in matters
of public concern. See, e.g., Snyder v. Phelps, 562 U.S. 443, 452–53
(2011) (noting that speech is a matter of public concern if it is
“fairly considered as relating to any matter of political, social, or
other concern to the community” and that for matters of public

Keisel v. Westbrook
20210414-CA 	20 	2023 UT App 163
concern, courts should “accord broad protection to speech to
ensure that courts themselves do not become inadvertent censors”
(quotation simplified)).7F
8
¶37 	Again, Keisel’s defamation claim against Westbrook is
based on a statement that Westbrook made in his post-game
interview. After stating that a “young man and his wife in the
stands told me, ah, to get down on my knees like you used to,”
Westbrook 	opined 	that 	“for 	me 	that’s 	just 	completely
disrespectful, ah to me, ah, I think it’s racial.” Keisel’s claim is
largely 	focused 	on 	the 	latter 	portion 	of 	this 	statement—
Westbrook’s assertion that “I think it’s racial.” But the district
court concluded that this was a statement of opinion, and we
agree.
¶38 	Although no Utah appellate case has yet considered this
kind of statement in a defamation case, many courts have
concluded that calling someone a racist cannot be actionable as
defamation. And this is so because the statement cannot be
verified as being true or false. See, e.g., Squitieri v. Piedmont
Airlines, Inc., No. 3:17CV441, 2018 WL 934829, at *4 (W.D.N.C.
Feb. 	16, 	2018) 	(concluding 	that 	statements 	“indicating 	that
Plaintiff is racist are clearly expressions of opinion that cannot be
proven as verifiably true or false” and thus are “statements of
opinion . . . not actionable for defamation”); Edelman v. Croonquist,
8. In the arguments below, Westbrook and the Jazz relied on the
protections of both the state and federal constitutions, and the
district court likewise relied on both constitutions when granting
the motions for summary judgment. In its brief, the Jazz suggest
that the First Amendment’s protections may be “narrower.” But
both 	constitutions 	recognize 	that 	statements 	of 	opinion 	are
protected, and recognition of this general principle alone is
enough for us to affirm. We have no need in this case to more
particularly decide whether there’s a relevant distinction between
the two.

Keisel v. Westbrook
20210414-CA 	21 	2023 UT App 163
No. 	09-1938, 	2010 	WL 	1816180, 	at 	*6 	(D.N.J. 	May 	4, 	2010)
(concluding that a defendant’s characterization of a plaintiff as
racist “is a subjective assertion, not sufficiently susceptible to
being proved true or false to constitute defamation”); Martin v.
Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D. Ill. July 19, 2007)
(concluding that the “defendants’ description of [the plaintiff] as
a racist” was, as a matter of law, “an opinion and thus is not
actionable”); Smith v. School Dist., 112 F. Supp. 2d 417, 429 (E.D.
Pa. 2000) (“While the [c]ourt acknowledges that a statement that
[the] plaintiff is ‘racist and [antisemitic],’ if it was made, would be
unflattering, annoying and embarrassing, such a statement does
not rise to the level of defamation as a matter of law because it is
merely non-fact based rhetoric.”).
¶39 	That said, some courts have held that an allegation of
racism can in certain circumstances be defamatory. See, e.g.,
Garrard ex rel. R.C.G. v. Charleston County School Dist., 890 S.E.2d
567, 	598 	(S.C. 	2023) 	(rejecting 	“any 	suggestion 	that 	calling
someone a racist can never be defamatory”); 50 Am. Jur. 2d Libel
and Slander § 200 (2023) (noting the divide in some cases on this
point). And on this front, some courts have drawn a distinction
between an allegation of racism generally (which would not be
actionable) and an allegation based on more particular conduct
(which could be). See, e.g., La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir.
2020) (holding that “accusations of concrete, wrongful conduct
are actionable[,] while general statements charging a person with
being racist, unfair, or unjust are not” (quotation simplified)); Law
Offices of David Freydin, PC v. Chamara, 24 F.4th 1122, 1131 (7th Cir.
2022) (recognizing that Illinois defamation law treats allegations
of racism “as actionable when based on identifiable conduct but
as non-actionable when stated in general terms, without asserting
specific factual support”); Forte v. Jones, No. 1:11-cv-0718, 2013 WL
1164929, at *6 (E.D. Cal. March 20, 2013) (holding that while an
“allegation of membership in the Ku Klux Klan” would be
actionable, an “allegation that a person is a ‘racist,’ on the other

Keisel v. Westbrook
20210414-CA 	22 	2023 UT App 163
hand” would not be actionable “because the term ‘racist’ has no
factually-verifiable meaning”).
¶40 	Keisel asks us to draw that same distinction here. In his
view, because Westbrook’s post-game comments were linked to
Keisel’s particular in-game statement (as opposed to being about
Keisel generally), Westbrook could be sued for defamation. But as
an initial matter, we note that some courts have held that even if
an allegation of racism was tied to a particular statement or
conduct, it’s still protectible opinion. See, e.g., Skidmore v. Gilbert,
No. 20-cv-06415, 2022 WL 464177, at *2–3, *9–10 (N.D. Cal. Feb. 15,
2022) (concluding that characterizing a statement from a student’s
Facebook 	page 	as 	“virulently 	racist” 	and 	“disturbingly
xenophobic” was non-verifiable opinion); Dodge v. Evergreen
School Dist. No. 114, No. 3:20-cv-05224, 2020 WL 4366054, at *6
(W.D. 	Wash. 	July 	30, 	2020) 	(concluding 	that 	characterizing
someone as “racist” and “bigoted” based on wearing a MAGA hat
was non-verifiable opinion, and further concluding that “whether
someone is racist, bigoted, and hateful in general is not a factual
question”). And the underlying rationale for these decisions is the
same rationale at issue in other cases involving other kinds of
opinions: the indeterminacy of an opinion itself. Because “a
certain set of facts might be viewed as racially insensitive by one
group of people who share the same political or social views, but
another group might view it as noncontroversial and socially
acceptable,” a court is “not in a position to give its imprimatur to
one view or the other” precisely because “the phraseology used is
one of opinion . . . not capable of being proven true or false.”
Covino v. Hagemann, 165 Misc. 2d 465, 470 (N.Y. Sup. Ct. 1995).
¶41 	Indeed, Keisel himself implicitly acknowledged the fluid
nature of interpretation while speaking with General Counsel the
day after the altercation. There, Keisel agreed that his statement
to Westbrook could have been construed as being derogatory in a
sexual sense. According to Keisel, Westbrook “could have taken
it as, oh, yeah I was telling him that he was going to suck some

Keisel v. Westbrook
20210414-CA 	23 	2023 UT App 163
dick or whatever. I get that there could be sexual type of things.
But racism? Come on, man.” The thing that would make this
statement susceptible to a sexual connotation, however, was its
attendant context—where the statement was made, who said it,
who the comments were directed at, and what sorts of cues were
implied by culture or circumstance. But if 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. And this is why Westbrook’s assertion that Keisel’s comment
was “racial” can’t be proven to be true or false. Simply put, if
beauty is in the eye of the beholder, ugliness is too.
¶42 	As a result, we conclude that although Westbrook opined
that particular statements were “racial” in nature (as opposed to
directing that kind of assessment at Keisel more generally), his
opinion still enjoyed constitutional protection. And lest there was
any doubt that he was indeed expressing an opinion, Westbrook
himself added several qualifiers that emphasized the subjective
nature of what he was saying. Again, Westbrook said that “for me
that’s just completely disrespectful, ah to me, ah, I think it’s racial.”
(Emphases added.) Those three qualifiers—“for me,” “to me,” “I
think”—all anchored Westbrook’s ensuing comments to his own
perception of Keisel’s earlier statement. Given these qualifiers,
any reasonable person who heard Westbrook’s statement would
understand 	that 	Westbrook 	was 	doing 	nothing 	more 	than
expressing 	an 	opinion. 	And 	statements 	of 	opinion 	are
constitutionally protected.
¶43 	Pushing back, Keisel argues that Westbrook’s post-game
statement still fell outside the realm of protected opinion because
the broader statement—or, at least, its “implication”—advanced
certain subsidiary facts that were themselves false and could be
verified as such. Though a touch unclear, Keisel seems to be
making something of a defamation-by-implication claim. In such
a 	claim, 	“it 	is 	the 	implication 	arising 	from 	the 	[allegedly
defamatory] statement and the context in which it was made, not

Keisel v. Westbrook
20210414-CA 	24 	2023 UT App 163
the statement itself,” that provides the basis for the suit. West, 872
P.2d at 1011. And “the objectively verifiable element” in a
defamation-by-implication claim “essentially breaks down into
two questions. First, could a reasonable fact finder conclude that
the 	underlying 	statement 	conveys 	the 	allegedly 	defamatory
implication? Second, if so, is that implication sufficiently factual
to be susceptible of being proven true or false?” Id. at 1019
(quotation simplified).
¶44 	Here, Keisel asserts that Westbrook made two subsidiary
claims in his post-game statement that were objectively verifiable,
false, 	and 	thus 	defamatory: 	namely, 	that 	Keisel 	had 	said
(1) something about Westbrook’s family and (2) something else
that was “worse.” We’ll address each of these assertions below.
But before doing so, we pause to note that Keisel’s brief was in
some 	measure 	reliant 	on 	an 	inaccurate 	account 	of 	what
Westbrook actually said. Westbrook’s post-game statement was
recorded, and that recording is in the record. In his brief,
Westbrook provided us with the full statement. We’ve reviewed
the recording, and Westbrook’s transcription of his post-game
statement comports with the recording. The full text of his
statement 	that 	we 	recounted 	above 	in 	the 	Background 	is
consistent with Westbrook’s recorded words.
¶45 	In his opening brief, however, 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

Keisel v. Westbrook
20210414-CA 	25 	2023 UT App 163
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.
¶46 	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.
¶47 	For purposes of assessing Keisel’s defamation claim, we’ll
assess Westbrook’s words as they were actually spoken, not how
Keisel presented them to us in his brief. So viewed, we first
address Keisel’s claim that Westbrook falsely implied that Keisel
had said “‘mean, disrespectful’ things about his family.” We
disagree with Keisel’s assertion. To be sure, Westbrook did use
the word “family” a few times in his post-game statement. But in
assessing a defamation-by-implication claim like this one, the
surrounding words must matter.

Keisel v. Westbrook
20210414-CA 	26 	2023 UT App 163
¶48 	In the first passage in which Westbrook referred to his
family, Westbrook said: “Um, I think there, there are a lot of great
fans in around the world that like to come to the game and enjoy
the game. And there are people that come to the game to say
mean, disrespectful thing about me, my family.” Here, Westbrook
discussed “a lot of great fans . . . around the world,” and he then
contrasted those “great fans” with “people that come to the game
to say mean, disrespectful thing about me, my family.” (Emphasis
added.) In this sense, Westbrook was talking about “people” in
the plural, as opposed to any one person such as Keisel.
¶49 	Westbrook’s 	generalized 	focus 	on 	the 	abuse 	that 	he
receives from NBA fandom continued in the next passage, which
is where he made the next references to his family. There (and
with our emphasis added to those statements to highlight them),
he said:
That’s just one video, but throughout the whole
game, 	throughout, 	since, 	since 	I’ve 	been 	here,
especially here in Utah, every time I come here there
a lot of disrespectful things are said and um, and for
me, I’m, I’m just not going to continue to take disrespect
for ah, my family. Um, and I just think that there’s got
to 	be 	something 	done, 	there’s got to 	be some
consequences for those type of people, ah, that come
to the game just to say and do, ah, whatever they
want to say. And um, I don’t think it’s fair, ah, to the
players, not just to me, but I, I don’t think it’s fair to
the players. Um, and if I had to do it over again, I
would say the same exact thing because, I, I, truly,
ah, will stand up for myself, for my family, for my kids,
for my wife, for my mom, for my dad every single time.
In this passage, Westbrook started out by creating a contrast
between the “one video” (an apparent reference to his interaction
with Keisel that had been caught on video) and other situations

Keisel v. Westbrook
20210414-CA 	27 	2023 UT App 163
from “throughout the whole game” or other times that he had
come to Utah and “those type of people” had “disrespect[ed]” his
family. In this sense, he was clearly talking about his experiences
in Utah over the years. And this generalized focus continued
during 	the 	rest 	of 	this 	statement. 	Read 	as 	a 	whole, 	what
Westbrook was complaining about was the abuse that he has
taken from fans generally, some of which came from “people”
(plural), and some of which has included hostility directed
toward his family, and he was then using this as an explanation
for why he’s willing to react to such abuse.
¶50 	But when Westbrook wrapped this point up by saying that
“I truly, ah, will stand up for myself, for my family, for my kids,
for my wife, for my mom, for my dad every single time,” no
reasonable person would think that Westbrook was saying that
every fan across the years who had insulted him (whether it be
Keisel or anyone else) had also insulted every one of the family
members that Westbrook had just listed. Rather, a reasonable
hearer would understand that Westbrook was saying that if a fan
insulted any of these people, Westbrook would “stand up for
them.” In this case, Keisel has admitted that he did say something
to Westbrook about his “knees” that Westbrook could have taken
as a derogatory slur. Since Westbrook notably included himself
on this list of people that he said he would protect, and since
Westbrook never then claimed that Keisel had said something
about Westbrook’s family, this statement is fairly understood as
being an assertion that Westbrook had chosen to “stand up for”
himself 	because 	Keisel 	had 	said 	something 	to 	(and 	about)
Westbrook. Thus, like the district court, we see no basis for
concluding that Westbrook can be sued for implying that Keisel
had said something about Westbrook’s family. This aspect of the
defamation-by-implication claim accordingly fails. See West, 872
P.2d at 1019 (noting the first step in analyzing a defamation-by-
implication claim is to determine whether “a reasonable fact
finder” could “conclude that the underlying statement conveys
the allegedly defamatory implication”).

Keisel v. Westbrook
20210414-CA 	28 	2023 UT App 163
¶51 	Second, Keisel claims in his brief that Westbrook implied
that “the ‘N’ word had been used.” Keisel draws this alleged
implication from Westbrook’s reference to something “way more
disrespectful” 	that 	had 	been 	said 	earlier. 	In 	Keisel’s 	view,
Westbrook’s “way more disrespectful” reference set up a contrast
between what Keisel was known to have said (i.e., the “on your
knees” comment) and some other thing that Keisel had allegedly
said that was worse (which, in Keisel’s proposed implication,
must have been “the ‘N’ word”). But when Westbrook’s statement
is reviewed in context, this wasn’t the contrast that Westbrook
was actually drawing. With our emphasis added, here’s what
Westbrook said:
Um, so that’s kinda where I’m at with the whole
situation. Um, as for beating up, um, his wife, I’ve,
I’ve never put my hand on a woman, I never will.
Um, never been in any domestic violence ah, before,
never have before, but once he said the comment,
his wife repeated it, the same thing to me as well. So
that’s kinda how that started. I know you guys only
got the tail end of the video, but the start of the video, um,
is way more important and way more disrespectful than
what you guys heard, so appreciate you all.
As is clear from the emphasized passage, with the “way more
disrespectful” 	reference, 	Westbrook 	was drawing 	a 	contrast
between “what you guys heard” at “the tail end of the video” (i.e.,
Westbrook’s 	hostile 	words 	to 	Keisel) 	and 	what 	Westbrook
apparently thought would have been at the “start of the video”
(i.e., what Keisel had said to provoke Westbrook’s outburst). In
other words, Westbrook was saying that when Keisel made his
“on your knees” comment, that was “way more disrespectful”
than what Westbrook had said in response. Because of this, we see
no basis for concluding that Westbrook implied that Keisel had
said anything worse than the “on your knees” comment, let alone
“the ‘N’ word.”

Keisel v. Westbrook
20210414-CA 	29 	2023 UT App 163
¶52 	In short, Westbrook’s post-game statement “I think it’s
racial” was protectible opinion, and we see no basis for implying
that 	Westbrook 	said 	anything 	else 	that 	could 	support 	a
defamation-by-implication claim. The district court therefore did
not err in granting Westbrook’s motion for summary judgment on
the defamation claims at issue.8F
9
9. Keisel and Huff have proceeded together throughout this case,
including by filing a joint appellate brief. Though our analysis
above 	largely 	resolves 	Huff’s 	defamation 	claim, 	there 	are
potential distinctions between the claims of Keisel and Huff
against Westbrook that do warrant some final discussion. As
noted, Keisel admits that he said something involving “on your
knees” to Westbrook, which is why his defamation claim turns on
whether Westbrook’s assessment that the comment was “racial”
was a protected opinion. Unlike Keisel, however, Huff alleged in
the complaint that she “had not said anything” to Westbrook.
And at oral argument before this court, Westbrook’s counsel
agreed that it was “undisputed that she didn’t say anything.” But
Westbrook has nevertheless argued throughout this appeal that
Huff 	still 	can’t 	prevail 	on 	her 	defamation 	claim 	because
Westbrook’s opinion that her (non-)statement was “racial” was
constitutionally protected.
This presents us with something of a legal conundrum.
Huff can satisfy the falsity element of a defamation claim in a way
that Keisel cannot. But a “publication is not defamatory simply
because it is nettlesome or embarrassing to a plaintiff, or even
because it makes a false statement about the plaintiff.” West v.
Thomson Newspapers, 872 P.2d 999, 1009 (Utah 1994) (quotation
simplified). Instead, even a false statement is defamatory only “if
it 	impeaches 	an 	individual’s 	honesty, 	integrity, 	virtue, 	or
reputation and thereby exposes the individual to public hatred,
contempt, or ridicule.” Id. at 1008. As discussed, Westbrook can’t
be sued for expressing his opinion that Keisel said something
(continued…)

Keisel v. Westbrook
20210414-CA 	30 	2023 UT App 163
II. Defamation Against the Jazz9F
10
¶53 	Keisel next argues that the district court erred in granting
the Jazz’s motion for summary judgment on the defamation claim
“racial” to him. But can Westbrook be sued for defamation for
expressing that same opinion if it turns out that Huff didn’t say
the underlying thing at all? Or perhaps more generally, could
Westbrook still be sued for falsely suggesting that Huff had made
a vulgar and offensive comment toward him (even if it wasn’t
racial)?
When the district court dismissed the claims of both Keisel
and 	Huff, 	it 	did 	so 	without 	addressing 	these 	potential
distinctions. And while Huff could in theory have separately
challenged the dismissal of her claim on these bases, she didn’t.
While the brief that she jointly filed with Keisel pointed out in a
few places (albeit 	usually 	in 	passing) 	that 	Huff 	didn’t 	say
anything to Westbrook, it didn’t provide us with any authority or
reasoned discussion showing that there would be any legal
distinction between Huff’s claim and Keisel’s. To the contrary, the
joint brief made the same arguments with respect to Huff that it
made with respect to Keisel – namely, that Westbrook had
defamed them both by expressing his opinion at all.
Because Huff made no real effort to differentiate her claim
on a nuanced legal basis, we’re in no position to do this work
ourselves. Instead, taking the arguments that were presented to
us, we conclude that Huff has not carried her burden of showing
that there was any error with respect to the district court’s
dismissal of her claim. In doing so, we leave open the possibility
that, 	if 	some 	future 	case 	arises 	in 	which 	these 	potential
distinctions are better presented, we may consider them anew.
10. It was somewhat unclear at times whether, in addition to
Keisel, Huff was also suing the Jazz for defamation, but Keisel and
Huff’s counsel conceded at oral argument that Huff has no claims
against the Jazz.

Keisel v. Westbrook
20210414-CA 	31 	2023 UT App 163
that Keisel filed against the team. As with his claims against
Westbrook, Keisel argues that the Jazz defamed him by falsely
communicating to the public that he had said something racist—
both expressly and by implication.
¶54 	Keisel’s arguments briefly touch on the team’s March 12
press release 	and 	its March 	14 	email. 	But 	Keisel 	does not
meaningfully 	develop 	any 	argument 	regarding 	either
communication. In any event, he has not persuaded us that the
district 	court 	erred 	by 	concluding 	that 	neither 	of 	these
communications supported the racism-based defamation claim at
issue.
¶55 	The 	March 	12 	press 	release 	said 	nothing 	about
racism. 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.
¶56 	So too with respect to the March 14 email. There, the
Jazz 	informed 	ticket 	holders: 	“We 	do 	not 	permit 	hate
speech, racism, sexism or homophobia. We also no not allow
disruptive behavior, including bullying, foul or abusive language,
or obscene gestures.” The Jazz didn’t single out any particular
kind 	of 	violation, 	instead 	referring 	to 	various 	categories
collectively. 	And 	again, 	Keisel 	admits 	that 	his 	words 	to
Westbrook could have been understood as a sexually derogatory
taunt. We therefore see no basis for concluding that this email
defamed Keisel.

Keisel v. Westbrook
20210414-CA 	32 	2023 UT App 163
¶57 	This leaves the pre-game statement by Miller before the
March 14 home game. Although Miller didn’t name Keisel, Keisel
argues that she defamed him by suggesting that he had said
something racist to Westbrook at the earlier game. Though
somewhat unclear from his briefing, we understand his argument
to be focused on the “on your knees” comment.
¶58 	In 	response, 	the 	Jazz 	initially 	suggest 	that 	a 	listener
wouldn’t have understood that Miller was talking about Keisel.
The Jazz argue that because Miller simply said, “We are not a
racist community” (emphasis added), her words would not have
been understood as referring to any one person. We have some
doubt whether the Jazz are correct about this. Again, when
determining the meaning or even the implied meaning of words,
the sequencing and the surrounding words must matter. Here,
Miller began by stating that “at the game Monday night,” “one of
our ‘fans’ conducted himself in such a way as to offend not only a
guest in our arena but also me personally, my family, our
organization, the community, our players and you, the best fans
in the NBA.” The very next thing she said was, “This should never
happen. We are not a racist community.” The clear import of the
statement “this should never happen” (emphasis added) was to
draw a contrast with what “one of our ‘fans’” had done at the
previous game, and the immediately ensuing declaration that “we
are 	not 	a 	racist 	community” 	would 	have 	reasonably 	been
understood to be a response to that fan’s conduct as well.
¶59 	But even so, we still agree with the district court that this
was not defamatory. And this is so for the same reasons discussed
above. “Statements of pure opinion” are “incapable of being
verified and therefore cannot serve as the basis for defamation
liability.” Davidson, 2019 UT App 8, ¶ 31 (quotation simplified).
The reason for this rule is that opinions “embody ideas, not facts.”
West, 872 P.2d at 1014. Like Westbrook, Miller and the Jazz had a
constitutionally protected right to express their opinion about
Keisel’s earlier statements.

Keisel v. Westbrook
20210414-CA 	33 	2023 UT App 163
¶60 	In a final attempt to establish some basis for liability
against the Jazz, Keisel suggests that the team defamed him by
implication in a manner that’s distinct from the claim against
Westbrook. Keisel points out that in the March 12 press release,
the Jazz publicly referred to their investigation into the incident.
According to Keisel, when Miller then publicly said on March 14
that “[w]e are not a racist community,” she thus implied that the
Jazz had learned through their investigation that Keisel had said
something “worse” to Westbrook, such as “the ‘N’ word.” In
Keisel’s view, the Jazz thus defamed him by not fully informing
the public about the results of their investigation, while a full
disclosure 	would 	have 	cured 	the 	allegedly 	defamatory
implications that the public might otherwise draw from Miller’s
statement.
¶61 	Keisel 	does 	not 	cite 	any 	Utah 	authority 	for 	what’s
essentially a defamation-by-incomplete-disclosure claim. And in
their respective briefs, Keisel and the Jazz disagree about the
contours of this doctrine as it has developed in other cases from
other jurisdictions. Considering the matter, we note that the cases
the 	parties 	discuss 	generally 	derive 	this 	doctrine 	from 	the
Restatement (Second) of Torts section 566 (Am. L. Inst. 1977).
There, the Restatement opines that if the expression of an opinion
“is reasonably understood as implying the assertion of the
existence of undisclosed facts about the plaintiff that must be
defamatory in character in order to justify the opinion,” the
defendant may be “subject to liability” for failing to disclose those
underlying facts. Id. § 566 cmt. c. In this sense, if a speaker’s failure
to disclose what the speaker knows implies the existence of other
facts, 	and 	those 	unspoken 	facts 	are 	defamatory, 	it’s 	those
unspoken facts (as opposed to the resultant expression of opinion)
that provide the basis for a defamation suit.
¶62 	We need not decide whether to officially adopt this portion
of the Restatement, nor do we need to decide which side’s view
of the resultant doctrine is correct. Assuming for argument only

Keisel v. Westbrook
20210414-CA 	34 	2023 UT App 163
that Keisel is correct about both the doctrine’s validity and its
contours, his claim still fails on the record before us.
¶63 	Again, under Utah law, the first step in analyzing a
defamation-by-implication claim is to determine whether “a
reasonable fact finder” could “conclude that the underlying
statement conveys the allegedly defamatory implication.” West,
872 P.2d at 1019. And Keisel’s proposed version of such a claim
turns on whether the speaker reasonably implied the existence of
undisclosed facts that are themselves defamatory. But in applying
this same doctrine, the Seventh Circuit has held that if a statement
“refers to facts in the public record,” it “is not actionable apart
from those facts.” Stevens v. Tillman, 855 F.2d 394, 400–01 (7th Cir.
1988). And the court then cited with approval an Illinois case
holding that a statement about a matter of public controversy was
not actionable because “a newspaper earlier had published the
facts on which these characterizations had been based.” Id. at 401.
¶64 	In another case, the Rhode Island Supreme Court likewise
held that if the facts “underlying an expressed derogatory opinion
are 	publicly 	known 	or 	disclosed, 	the 	opinion, 	justified 	or
unjustified, is privileged as a matter of law.” Alves v. Hometown
Newspapers, 	Inc., 	857 	A.2d 	743, 	751 	(R.I. 	2004) 	(quotation
simplified). In such a circumstance, listeners “will understand
they are getting the author’s interpretation of the facts presented”
and 	“are 	therefore 	unlikely 	to 	construe 	the 	statement 	as
insinuating the existence of additional, undisclosed defamatory
facts.” Id. (quotation simplified).
¶65 	Here, 	the 	altercation 	between 	Keisel 	and 	Westbrook
occurred in front of thousands of other fans. There was nothing
hidden or private about it. And before the Jazz ever spoke
publicly about it, Keisel and Westbrook had both given public
accounts of what Keisel had allegedly said. Westbrook claimed in
his post-game interview that Keisel had told him to “get down on
[his] knees like [he] used to.” And in his own interview with KSL

Keisel v. Westbrook
20210414-CA 	35 	2023 UT App 163
that night, Keisel said that he had told Westbrook to “sit down
and ice your knees.” In the days that followed, both assertions
were widely discussed in local and national media.
¶66 	True, the Jazz then informed the public through a press
release that the team had conducted an investigation. And a few
days later, Miller made the public statement that “[w]e are not a
racist community.” But we don’t see anywhere in the press
release, Miller’s statement, or any other place in the record where
the 	Jazz 	reasonably 	implied 	that 	their 	investigation 	had
uncovered evidence that Keisel had said anything worse than
what had already been publicly reported. If anything, Miller
implied the opposite. At the outset of her statement, she said that
“one of our ‘fans’ conducted himself in such a way as to offend
not only a guest in our arena but also me personally, my family,
our organization, the community, our players and you, the best
fans in the NBA.” By noting that Keisel’s conduct had offended “a
guest in our arena,” Miller was making an apparent reference to
Westbrook; and by doing so, Miller was suggesting that the Jazz
were reacting in part to his view of the offensive nature of what
had been said. As already discussed, Westbrook had publicly
expressed his view that Keisel’s “on [your] knees” comment alone
was racial.
¶67 	Given 	all 	this, 	we 	believe 	that 	Keisel’s 	proposed
defamation-by-inadequate-disclosure claim stretches the record
too far. The Jazz told the public that they had investigated, and
then, as was the team’s constitutional right, the Jazz reacted
publicly. But by that point, the details of that altercation had been
widely 	discussed, 	and 	those 	publicly 	discussed 	details 	had
already prompted Westbrook to assert that Keisel had said
something racial. Read in context, Miller’s statement was a
reaction to both that and the controversy that had followed. We
see no place where the team reasonably implied that it had
uncovered evidence that Keisel had said anything else that was
worse than the public already knew, let alone something so

Keisel v. Westbrook
20210414-CA 	36 	2023 UT App 163
particularly pointed as “the N word.” As a result, the district court
correctly dismissed this aspect of the defamation claim as well.
III. Remaining Claims
¶68 	The district court also dismissed the claims for false light,
intentional 	infliction 	of 	emotional 	distress, 	and 	negligent
infliction of emotional distress against both Westbrook and the
Jazz.10F
11 Keisel and Huff challenge those dismissals on appeal, but
we again agree with the district court.
¶69 	There appear to be two separate components to these
claims. First, the claims against both Westbrook and the Jazz are
based on the same statements at issue in the defamation claims.
And second, Keisel and Huff separately claim that Westbrook’s
profane outburst on the court could give rise to liability as well.
¶70 	To the extent that the claims are based on the statements at
issue in the defamation claims, they necessarily fail. Our supreme
court has recognized that there are “substantial areas of overlap
between” defamation and other speech-based torts. SIRQ, Inc. v.
Layton Cos., 2016 UT 30, ¶ 50, 379 P.3d 1237 (quotation simplified).
“Virtually any defamation claim may be recast as an action for
false light invasion of privacy,” and for “that reason[,] false light
claims that arise from defamatory speech raise the same First
Amendment concerns as are implicated by defamation claims.”
Id. (quotation simplified). Similarly, “where an emotional distress
claim is based on the same facts as a claim for defamation,
appropriate concern for the First Amendment rights of the parties
must be considered.” Russell v. Thomson Newspapers, Inc., 842 P.2d
11. The district court’s ruling on summary judgment does not
separate any of the claims between Keisel and Huff, instead
referring to the plural “Plaintiffs” for its decision on each claim.
As noted, however, Keisel and Huff’s counsel conceded at oral
argument that Huff has no claims against the Jazz.

Keisel v. Westbrook
20210414-CA 	37 	2023 UT App 163
896, 906 (Utah 1992). “A plaintiff may not attempt an end-run
around First Amendment strictures protecting speech by instead
suing for defamation-type damages under non-reputational tort
claims.” Allen v. Beirich, No. CCB-18-3781, 2019 WL 5962676, at *5
(D. Md. Nov. 13, 2019) (quotation simplified), aff’d in part, vacated
on other grounds, Allen v. Beirich, No. 19-2419, 2021 WL 2911736
(4th Cir. July 12, 2021). “Rather, non-defamation torts based on
speech must meet First Amendment requirements.” Id. As a
result, at oral argument, Keisel’s counsel conceded (correctly, we
think) that if this court concludes that the statements at issue were
constitutionally protected opinion (thus warranting dismissal of
the defamation claims), then those statements could not be the
basis for the false light or emotional distress claims either.
¶71 	In Parts I and II above, we have indeed concluded that the
statements 	at 	issue 	from 	Westbrook 	and 	the 	Jazz 	were
constitutionally protected statements of opinion. To the extent
that the remaining claims were based on these same statements,
the claims accordingly fail as a matter of law.
¶72 	This leaves the assertion that Westbrook can be held liable
for either intentional or negligent infliction of emotional distress
based on his in-game outburst. Again, in that outburst, Westbrook
shouted: “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.” Unlike the later statements, we see nothing
in this outburst in which Westbrook expressed a constitutionally
protectible opinion. But even so, summary judgment was still
warranted if “the evidence shows that there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Anderson Dev. Co. v. Tobias, 2005 UT
36, ¶ 19, 116 P.3d 323 (quotation simplified).
¶73 	“Due 	to 	the 	highly 	subjective 	and 	volatile 	nature 	of
emotional distress and the variability of its causations, the courts
have historically been wary of dangers in opening the door to

Keisel v. Westbrook
20210414-CA 	38 	2023 UT App 163
recovery therefor.” Oman v. Davis School Dist., 2008 UT 70, ¶ 51,
194 P.3d 956 (quotation simplified). On an intentional infliction of
emotional distress claim, our courts thus require a plaintiff to
demonstrate:
(a) that a defendant intentionally engaged in some
conduct toward the plaintiff considered outrageous
and intolerable in that it offends the generally
accepted 	standards 	of 	decency 	and 	morality;
(b) with the purpose of inflicting emotional distress
or where any reasonable person would have known
that such would result; and (c) that severe emotional
distress resulted as a direct consequence of the
defendant’s conduct.
Davidson, 2019 UT App 8, ¶ 56 (quotation simplified). And to
sustain such a claim, “a defendant’s alleged conduct must be more
than unreasonable, unkind, or unfair, it must instead be so severe
as to evoke outrage or revulsion.” Id. (quotation simplified).
¶74 	“Unlike a claim for intentional infliction of emotional
distress, a claim for negligent infliction of emotional distress does
not require proof of outrageous conduct.” Anderson Dev. Co., 2005
UT 36, ¶ 57. But even so, the conduct at issue “must be severe; it
must be such that a reasonable person, normally constituted,
would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.” Mower v. Baird,
2018 UT 29, ¶ 57, 422 P.3d 837 (quotation simplified). A defendant
can therefore be held liable for negligent infliction of emotional
distress only if the defendant “(a) should have realized that his
conduct involved an unreasonable risk of causing the distress,
otherwise than by knowledge of the harm or peril of a third
person, and (b) from facts known to him, should have realized
that the distress, if it were caused, might result in illness or bodily
harm.” Carlton v. Brown, 2014 UT 6, ¶ 56, 323 P.3d 571 (quotation
simplified).

Keisel v. Westbrook
20210414-CA 	39 	2023 UT App 163
¶75 	The district court concluded that while Westbrook’s in-
game outburst was “coarse and offensive,” it did not “as a matter
of law rise to the level of extreme and outrageous conduct”
necessary to sustain an intentional infliction of emotional distress
claim. The court also concluded that Westbrook had no basis for
realizing that his outburst was so severe that it “might result in
illness or bodily harm” to Keisel or Huff for purposes of the
negligent infliction of emotional distress claim. We agree with the
district court.
¶76 	Profane 	outbursts 	are 	of 	course 	unfortunate 	and
disfavored in civil society. But even so, courts commonly hold
that, without something more, a profane outburst isn’t enough to
sustain an intentional infliction of emotional distress claim. See,
e.g., McGrew v. Duncan, 333 F. Supp. 3d 730, 742–43 (E.D. Mich.
2018); Jiminez v. CRST Specialized Transp. Mgmt., Inc., 213 F. Supp.
3d 1058, 1065–66 (N.D. Ind. 2016); Walker v. Mississippi Delta
Comm’n on Mental Health, No. 4:11CV044, 2012 WL 5304755, at *9–
10 (N.D. Miss. Oct. 25, 2012); Lawson v. Heidelberg E., 872 F. Supp.
335, 336, 338–39 (N.D. Miss. 1995); Groff v. Southwest Beverage Co.,
Inc., 997 So. 2d 782, 787 (La. Ct. App. 2008); Lombardo v. Mahoney,
No. 92608, 2009 WL 3649997, at *1–2 (Ohio Ct. App. Nov. 5,
2009).11F
12 And while we’re aware of no similar case that arose in the
negligent infliction of emotional distress context, we believe that
a similar result would likely be reached if such outbursts were
assessed under the “severe” conduct rubric that’s used in such
cases. See Mower, 2018 UT 29, ¶ 57 (quotation simplified).
¶77 	Moreover, in assessing any emotional distress claim, a
court must of course consider the context in which the offending
12. Each decision in this string cite rejected an emotional distress
claim that was based on a profane outburst, and the language at
issue in many of these decisions was as aggressive (if not more so)
than the language at issue here. We have no need to further
publicize the particulars.

Keisel v. Westbrook
20210414-CA 	40 	2023 UT App 163
conduct occurs. Words that might be outrageous or severe if
spoken at a funeral may well be interpreted differently if they are
spoken by the proverbial sailors at sea. And this is largely why we
agree with the district court’s rejection of the claims at issue here.
Westbrook’s outburst occurred at a professional sporting event, a
place where society has unfortunately come to expect some
amount of intemperate behavior. And the outburst at issue also
wasn’t unprovoked. Again, Keisel admitted that Westbrook was
responding to an initial statement from Keisel that could have
been understood as a sexual if not homophobic slur. These details
of course change the calculus as to whether Westbrook’s response
was so outrageous or severe that it could support an emotional
distress claim.
¶78 	Pushing back, 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.”
¶79 	Still seeking to find some solid footing for their suit, Keisel
and Huff point to the power imbalance between them and
Westbrook. From this, they suggest that Westbrook had implicitly
threatened 	to 	evoke 	outrage 	against 	them 	through 	his
“followers.” But Westbrook said nothing of the sort. Rather, what
he said was “I’ll fuck you up.” While this was clearly a profane
response to Keisel’s initial comments, it strains credulity to
suggest 	that, 	with 	this 	statement 	alone, 	Westbrook 	was

Keisel v. Westbrook
20210414-CA 	41 	2023 UT App 163
threatening to subsequently engage in an orchestrated campaign
of public ridicule against this unnamed fan who had just taunted
him from the stands.
¶80 	In dismissing these claims, the district court quoted the
following comment from the Restatement:
[P]laintiffs 	must 	necessarily 	be 	expected 	and
required to be hardened to a certain amount of
rough language, and to occasional acts that are
definitely inconsiderate and unkind. There is no
occasion for the law to intervene in every case where
someone’s feelings are hurt. There must still be
freedom to express an unflattering opinion, and
some safety valve must be left through 	which
irascible tempers may blow off relatively harmless
steam.
(Quoting Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst.
1965).) While this comment from the Restatement was directed at
the “outrageousness” element of an intentional infliction of
emotional distress claim, the sentiment has some natural bearing
on the “severe” element of a negligent infliction claim as well.
And 	it 	largely 	explains 	why 	the 	profane 	statements 	from
Westbrook do not support the claims at issue.
¶81 	We 	certainly 	don’t 	condone 	what 	Westbrook 	said.
Sports 	and 	society 	alike 	would 	be 	better 	off 	without 	such
language. 	And 	for 	that 	matter, 	the 	other 	fans 	who 	were
sitting nearby deserved far better from both Westbrook and
Keisel. These two adults could and should have found a way to
disagree better.
¶82 	But even so, under well-worn legal standards, we agree
with the district court that Westbrook’s outburst could not
support a claim for either intentional or negligent infliction of

Keisel v. Westbrook
20210414-CA 	42 	2023 UT App 163
emotional distress. We therefore affirm the court’s dismissal of
those claims.12F
13
CONCLUSION
¶83 	For the foregoing reasons, we conclude that the district
court did not err in granting summary judgment to Westbrook
and the Jazz. We therefore affirm.
13. Two final issues warrant brief discussion. First, around the
same time that Westbrook and the Jazz filed their motions for
summary judgment, Keisel and Huff filed a motion to amend
their complaint to add additional claims against the Jazz. The
court denied that request, and Keisel and Huff did not challenge
that denial in their appellate brief. In this same motion, Keisel and
Huff also sought leave to add an untimely request for a jury trial.
The court denied that request as well. Keisel and Huff have
challenged that portion of this ruling on appeal, but we have no
need to consider this challenge given our decision to affirm the
court’s dismissal of their claims.
Second, after the court granted summary judgment, it
awarded costs to both Westbrook and the Jazz under rule 54(d) of
the Utah Rules of Civil Procedure. In a single sentence at the close
of their brief, Keisel and Huff challenge that ruling. But they
provide no authority or reasoned argument to support that
challenge. They accordingly have not carried their burden of
persuading us that there was any error with respect to it.