M.  Two Appeals Courts Address

Jurisdiction Over Web Publications

 

      In what is believed to be the first federal court case involving the issue of personal jurisdiction in a libel suit involving publication over the Internet, two Connecticut newspapers were held to be outside of the reach of Virginia courts because they lacked sufficient minimum contacts within that state.  The case, Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), derives from an article about the transfer of Connecticut prisoners to Virginia.  The newspapers, the New Haven Advocate and the Hartford Courant, were successfully able to show that they did not do sufficient business in the Commonwealth of Virginia – nor did the articles discuss events relevant to Virginia -- to subject the papers to the jurisdiction of Virginia courts. 

      As the year was ending, the Fifth Circuit, borrowing heavily from Young, reached the same conclusion in a case involving the posting of an allegedly defamatory article to an open Internet forum run by the Columbia School of Journalism.  Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002).

 

Young v. New Haven Advocate

      Young arises from the overcrowding of Connecticut maximum security prisons, which forced that state to contract with the Commonwealth of Virginia to send prisoners to Virginia correctional facilities.  Beginning in 1999, Connecticut transferred about 500 prisoners to the Wallens Ridge State Prison in Big Stone Gap, Va.  Several Connecticut newspapers began reporting on this novel arrangement.

      On March 30, 2000, the New Haven Advocate published a news article written by one of its reporters, Camille Jackson.  The article discussed the allegedly harsh conditions in the Wallens Ridge facility and the long trip to that prison, which made visitation by prisoners’ families or friends virtually impossible.  It also mentioned a class action suit that had been filed against the prison’s warden, Stanley Young; the suit alleged a lack of proper hygiene and medical care, and denial of the free exercise of religious privileges.  A sole paragraph at the end of the article reported that a Connecticut state senator had been concerned with the presence of Confederate Civil War memorabilia in Warden Young’s office.

      Around this same time, the Hartford Courant published three columns by reporter Amy Pagnozzi questioning the practice of relocating these prisoners.  The columns reported on letters written home by inmates alleging cruelty by prison guards, though Warden Young was not mentioned by name.

      On May 12, 2000, Warden Young sued both newspapers, as well as both reporters and their editors, for libel in a diversity action filed in the U.S. District Court for the Western District of Virginia.  Warden Young claimed that the articles portrayed him as a racist who encouraged the abuse of inmates by his prison guards.  He alleged that the newspapers circulated these allegedly defamatory articles around the world by publishing them on their Internet Web sites.

      The defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(2), arguing that the district court in Virginia lacked personal jurisdiction.  The Advocate is a free newspaper published once a week in New Haven, Conn.  It is distributed in New Haven and the surrounding area.  Some of its content is published on its Internet Web site.  It has only a very small number of subscribers, none of whom resides in Virginia.  The Courant is published daily in Hartford and is distributed in and around that city.  Some of its content is also published on its Web site.  It has eight mail subscribers who reside in Virginia. 

      Neither paper solicits subscriptions from Virginia residents.  Neither has offices or employees in Virginia, nor do they regularly solicit or do business in Virginia.  No one from either paper ever traveled to Virginia to work on the stories at issue, though telephone calls were made to locations in Virginia in order to compile the stories.  Most telephone calls, however, were placed to locations within Connecticut. 

      Warden Young argued that jurisdiction in Virginia was proper because the articles were posted on Internet Web sites available to Virginia residents.  He provided copies of the Jan. 26, 2001 Internet publications for each newspaper.  The Advocate’s home page contained articles about the “Best of New Haven” and the city’s police force, as well as classified advertisements and real estate listings for that city.  The Courant’s home page for that day solicited advertisements for goods and services in Hartford, contained news stories about the city, and weather reports for Hartford and New Haven.  Neither site for that day contained any content connected to persons or events in Virginia.

      The district court denied the newspaper defendants’ motions to dismiss.  The court concluded that it could exercise personal jurisdiction under Virginia Code Ann. Sec. 8.01-328(A)(3) because the defendants’ Connecticut-based Internet activities constituted an act leading to an injury in Virginia.  The defendants filed an interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit. 

      The appeals court noted that Virginia’s statute relating to personal jurisdiction is very broad, allowing personal jurisdiction to the extent permitted by the Due Process Clause of the U.S. Constitution.  Young, 315 F.3d at 261.  The question therefore became “whether the defendant has sufficient ‘minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’”  Id. (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).  Warden Young alleged that “specific” jurisdiction existed based on conduct related to the suit (as opposed to “general” jurisdiction, based upon the defendants engaging in a large amount of business in the forum state). 

      In determining whether specific jurisdiction existed, the court of appeals would assess whether: (1) the defendant purposefully availed itself of the privileges of conducting activities in the forum state; (2) the plaintiff’s claim arises out of the defendant’s forum-related activities; and (3) the exercise of personal jurisdiction over the defendant would be constitutionally reasonable.  Young, 315 F.3d at 261 (citing ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). 

      Warden Young argued that specific jurisdiction resulted from three facts.  First, the newspapers, knowing that Warden Young was a Virginia resident, intentionally discussed and defamed him in their articles.  Second, the newspapers posted the articles on their Web sites, which were accessible in Virginia.  Third, the primary effects of the defamatory statements on Warden Young’s reputation were felt in Virginia. 

      Rather than emphasizing that jurisdiction would be proper anywhere in the world because a reader could access these articles over the Internet, Warden Young argued that the newspapers understood that their articles would lower his reputation in Virginia, where he lived and worked.  He did not argue that the Advocate’s eight Virginia subscribers, or the telephone calls placed to Virginia locations, provided specific jurisdiction.  Instead, he relied on the case of Calder v. Jones, 465 U.S. 783 (1984).  Though Calder was not an Internet case, the U.S. Supreme Court allowed a libel action against the Florida-based National Enquirer to proceed in California because California was the focal point of both the story and the harm suffered, as well as the state in which the National Enquirer had its largest circulation.

      The Fourth Circuit did not agree that Calder was controlling.  It concluded that the application of Calder in the Internet context required proof that the out-of-state defendant’s Internet activity is expressly targeted at the forum state.  Young, 315 F.3d at 262.  Instead, it concluded that a state may exercise personal jurisdiction when the defendant (1) directs electronic activity into the state, (2) with the manifested intent of engaging in business or other interactions within the state, and (3) that activity creates, in a person within the state, a potential cause of action cognizable in the state’s courts.  Id. at 263 (citing ALS Scan, 293 F.3d at 714). 

      The key inquiry, according to the court of appeals, was whether the newspapers manifested an intent to direct their Web site content to a Virginia audience.  The court concluded that a defendant’s act of placing information on the Internet is not sufficient, by itself, to subject the defendant to personal jurisdiction in every state in which the information is accessible.  Id. at 263 (citing ALS Scan, 293 F.3d at 712).  If that were true, there would be no limit to personal jurisdiction: “Something more than posting and accessibility is needed to ‘indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state.’”  Id. at 263 (quoting Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998)). 

      In this case, the content of the Web sites was not directed in that manner.  Both Web sites were decidedly local in nature, with neither containing articles or advertisements directed at a Virginia audience.  These newspapers, the court concluded, maintained their Web sites to serve local readers in Connecticut and to expand the reach of their papers within their local markets.

      Nor did the specific articles evidence a desire to target a Virginia audience.  Only one article mentioned Warden Young by name.  The thrust of these articles was to critique the policy of transferring Connecticut prisoners and the effect thereof on the prisoners and their families back home.  Connecticut, not Virginia, was the focal point of the articles. 

      The Fourth Circuit reversed the order of the district court denying the motions to dismiss for lack of personal jurisdiction.

 

Revell v. Lidov

      Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002), offered a slightly different set of facts but substantially the same result.  Hart Lidov, an assistant professor of pathology and neurology at Harvard Medical School, wrote a lengthy article on the bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland, in 1988.  He alleged a broad political conspiracy among senior members of the Reagan Administration that lay behind their refusal to stop the bombing despite clear advance warnings, as well as a cover-up of this evidence after the fact.  The article singled out Oliver “Buck” Revell, then-associate deputy director of the FBI, for severe criticism.

      At the time he wrote the article, Prof. Lidov had never been to Texas.  He was also completely unaware that Mr. Revell resided in Texas.  Prof. Lidov posted the article on a Web site maintained by the Columbia School of Journalism, even though he had never been a Columbia student or faculty member.  Mr. Revell sued the Board of Trustees of Columbia University, whose principal offices are in New York City, and Prof. Lidov, a Massachusetts resident, in the U.S. District Court for the Northern District of Texas.  That court granted the defendants’ motions to dismiss for lack of personal jurisdiction.  Revell v. Lidov, 2001 WL 285253 (N.D. Tex. March 20, 2001). 

      Finding immediately that Texas’s long-arm statute provides for personal jurisdiction to the greatest extent permitted by the U.S. Constitution, the court of appeals began its analysis of whether exercising personal jurisdiction over Prof. Lidov and Columbia would offend constitutional notions of due process.  The court outlined the framework for this argument exactly as the Fourth Circuit had done in Young. 

      Mr. Revell argued that general jurisdiction existed over Columbia University because its Web site allows users the opportunity to purchase the Columbia Journalism Review, to purchase advertising on the Web site, and to submit applications for admission from anywhere in the world, including Texas.  The Fifth Circuit did not agree that allowing interaction from anywhere in the world would also confer jurisdiction anywhere in the world.  It cited the case of Zippo Manufacturing Co. v. Zippo Dot Com, Inc., an early Internet jurisdiction case, as a potential, though ultimately improper, analysis of general jurisdiction in this situation:

 

Zippo used a “sliding scale” to measure an internet site’s connections to a forum state.  A “passive” website, one that merely allows the owner to post information on the internet, is at one end of the scale.  It will not be sufficient to establish personal jurisdiction.  At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper.  In between are those sites with some interactive elements, through which a site allows for bilateral information exchange with its visitors.  Here, we find more familiar terrain, requiring that we examine the extent of the interactivity and nature of the forum contacts.  Revell, 317 F.3d at 470 (citing Zippo, 952 F. Supp. 1119 (W.D. Pa. 1997)). 

 

      Irrespective of that analysis, however, the court of appeals determined that the question of general jurisdiction was not difficult in this case, as the cited contacts within Texas were in no way substantial.  In fact, since it began keeping records, Columbia had not received more than 20 Internet subscriptions to the Columbia Journalism Review from Texas residents.

      The appeals court did believe the Zippo sliding scale test was useful in determining the existence of specific jurisdiction.  In this case, the maintenance of and posting to an Internet bulletin board would provide the basis for any such specific jurisdiction.  Because individuals could send information to the bulletin board to be posted and receive information that others had posted, there was some degree of interactivity.  For that reason, the court examined the extent of that interactivity and analyzed the case under Calder v. Jones.  The court found many distinctions between this case and Calder, which provided insurmountable hurdles to the exercise of personal jurisdiction by Texas courts:

 

First, the article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states.  Texas was not the focal point of the article or the harm suffered, unlike Calder, in which the article contained descriptions of the California activities of the plaintiff, drew upon California sources, and found its largest audience in California.  This conclusion fits well with our decisions in other intentional tort cases where the plaintiff relied upon Calder.  In those cases we stated that the plaintiff’s residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder.  Revell, 317 F.3d at 473.

 

The Fifth Circuit also cited the Fourth Circuit’s application of Calder in Young. 

      Though Prof. Lidov must have known that the harm of the article would hit home wherever Mr. Revell resided, the Fifth Circuit did not believe that this, in and of itself, would provide jurisdiction in the plaintiff’s home state, as that would be the case with virtually any defamation.  The geographic focus of the article must also be considered.  In this case, the focus was Washington, D.C., rather than Texas. 

      The court of appeals affirmed the dismissal for lack of personal jurisdiction.

 

--Kevin Goldberg and Richard M. Schmidt, Jr.