CAN A LIBEL DEFENDANT BE SUED IN ANY AND EVERY STATE FOR MATERIAL PUBLISHED ON A WEBSITE?:
By JULIE HILDEN
Tuesday, Jun. 04, 2002
Can a newspaper that owns a website accessible in all fifty states, and its editors and reporters, be sued for libel in any one of those states based on an article that appears on its website? What if the newspaper has little or no circulation in a given state, and its only contact with that state is that it is Internet-accessible there? Does it matter if the article is about one of the state's residents?
Soon, the United States Court of Appeals for the Fourth Circuit will issue a decision that will likely address these very questions. Unfortunately, the opinion may only illustrate how little sense current doctrines of libel law jurisdiction make, and why they should be dramatically reformed.
The case the Fourth Circuit will resolve was brought in Virginia federal court by Virginia prison warden Stanley Young. Young sued two Connecticut newspapers, The Hartford Courant and The New Haven Advocate. Each had published a story on its respective website that criticized how Young's prison treated Connecticut inmates. (In 1999, Connecticut adopted a policy under which its inmates could be sent to high-security Virginia prisons.)
The case was properly brought in federal court. But a dispute remains: Does the case belong in Virginia federal court or Connecticut federal court?
The dispute is about "personal jurisdiction" - which focuses on whether a given defendant has sufficient contacts with a given state to be sued there. Young says the websites establish sufficient Virginia contacts. He also points out that Virginia is the locus (place) of the injury alleged in the case - because that is where he lives, and thus, where he alleges his reputation was libeled.
The Supreme Court's Key Libel Jurisdiction Precedent
Which side is correct? According to the leading Supreme Court precedent, it's probably Young's side: Personal jurisdiction exists in Virginia. But that precedent is deeply flawed.
Although almost 20 years have passed since it was issued, the central precedent on libel law jurisdiction remains the Supreme Court's 1984 decision in Calder v. Jones. There, actress Shirley Jones - whom you probably remember as the mom on "The Partridge Family" - had sued the National Enquirer and its editor and reporter in California.
Jones alleged that an article the Enquirer had published, reporting she had a drinking problem that was interfering with her work, was libelous. (Libel requires not only a false statement, but also, when a public figure is the plaintiff, a knowing state of mind on the defendant's behalf that is called "actual malice." Actual malice, in turn, requires subjective knowledge on the defendant's part that the article is probably false. Thus, Jones needed to show both that the article was false, and that the defendants knew that was probably the case.)
The Enquirer, a Florida company with its principal place of business in Florida, protested that its editor and reporter, both Florida residents who worked in Florida, did not have enough California contacts for the suit - or, at least, the claims against them - to be situated there.
Nevertheless, the Court ruled for Jones (perhaps giving new meaning, for her, to the song "Come On, Get Happy!). As a result, her California suit was allowed to proceed forward against the editor and reporter, as well as the publication.
The Court's Standards, and How They May Apply in the Young Case
In ruling in Jones's favor, the Supreme Court applied the traditional, constitutional standard for deciding whether each defendant (here, the editor and reporter, respectively) has sufficient contacts with the State at issue that he or she can be sued there. The Court asks: Is this a State in which the defendant "has certain minimum contacts . . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice"?
If this standard sounds kind of circular, that's because it is. Basically, the test says that it's unfair to drag a defendant to trial in a far-off state in those circumstances in which courts have always felt that it would be unfair to do so. Obviously, this test gives little guidance to lower courts as to which circumstances, exactly, are unfair ones. To put it in plainer language: The Supreme Court punted.
Besides applying a vague and circular standard, the Calder Court also erred in another way. It found relevant that in the lawsuit, petitioners were "charged with intentional, and allegedly tortious, actions ... expressly aimed at California." The Court reasoned that if the editor and reporter had allegedly aimed at Jones in California, and hit their mark, then they were duty-bound to meet her in Court there to address her wounds.
This reasoning is flawed. It is flawed because this tort is what the defendants were "charged with" - as the Court admitted - not what they had been proven to have done.
The Court was wrong to take allegations as fact in deciding the jurisdictional question, for an obvious reason: Before a suit is litigated, it is wrong to simply assume that the plaintiff is right and will win. At the start, all parties should be on par with each other. Neither side is presumed to be right; proof will decide that issue.
If Jones was indeed right, and the report that she had a drinking problem was false and published with knowledge that it was false, then the editor and reporter - and the Enquirer - did aim and hit California, and it would be fair for them be sued there. After all, they knowingly lied about the plaintiff and published the lie knowing that she would be hurt by it in California. But the Court couldn't properly determine that at the outset of the case.
Moreover, if the Enquirer was right, and Jones did have a drinking problem that was affecting her work - or if the Enquirer innocently and inadvertently published an inaccurate article - then all that occurred was the exercise of the First Amendment right to publish a non-libelous article. In that event, it doesn't seem fair for the Florida-based Enquirer and its Florida-based editor and report to go all the way out to California to be sued. Again, though, the Court couldn't know before the case started who was right - and thus, its test is itself unfair.
How the Flaws In Calder's Logic Will Likely Help Young's Prison Warden Plaintiff
First, the Court's decision to draw on tradition, while refraining from defining when the exercise of personal jurisdiction is fair, adds an element of uncertainty. Does a defendant have a "contact" with a state if it maintains (or if he or she writes or edits for) a website accessible in that state? And if a website is indeed a "contact," is it the kind of minimum contact that, by itself, would be a fair basis to drag the defendant to court in that State?
Lawyers for both sides will pretend the answers to these questions obviously go their client's way. The real answer, however, is this: Who knows? The Supreme Court needs to get a better "minimum contacts" test, pronto - one that does not rely so heavily on traditional notions, and that can be applied in the digital age.
Second, Calder's error in treating allegations as if they were already proved means that the Connecticut papers and their reporters and editors may be in trouble - and may have to stay in Virginia court. After all, they knew Young worked in Virginia and probably lived there too, as he was the warden of the very prison they were investigating. They also knew their website could be read in Virginia, and therefore their article could hurt Young there.
According to Young's allegations, then, the defendants took aim and hit their target in Virginia. But as in the Calder case, it is wrong to look to allegations alone. If Young is wrong, and his allegations are disproved, then the newspapers and their editors and writers only exercised First Amendment rights.
Calder is a bad decision for the newspaper defendants in Young, but it's a worse decision for the law in general. That's because it only deepens the senseless morass into which the doctrine of libel law personal jurisdiction has fallen.
Why the Choice of Court Matters, Even Though They're Both Federal Courts
Precedent aside, some of the reasons why the choice between a Virginia and a Connecticut forum is significant are more obvious than others.
State law generally governs libel cases (though federal First Amendment law is also obviously relevant), and libel law varies state by state. In part, that is because some states have longer statutes of limitation than others, during which a suit can be brought after an article's publication. Some states' law, predictably, is more pro-defendant; other states' law is more pro-plaintiff.
There are other differences, too. For instance, libel defendants like to avoid California forums, because Hollywood influence has brought a number of media-hostile laws to the State - including an anti-paparazzi statute of dubious First Amendment status.
In theory, questions about choice of law - Virginia's or Connecticut's? - should be separate from questions of choice of court: Virginia federal court, or Connecticut federal court? But in practice, that is simply not the case. Federal courts often apply the law of the state in which they're situated, even if another state's law arguably applies.
Their state's law and precedents, after all, are what they are familiar with, and comfortable with applying.
Not only the question of what law applies, but also the issue of who will bear travel and travel-related costs, is also at issue. Consider, for instance, the cost of simply paying for two lawyers to take a three-hour flight. If the lawyers bill a modest-for-the-profession $200 an hour, that means the client can be charged an extra $2400 simply for the roundtrip - and that's excluding the cost of the plane tickets, hotel rooms, and so on.
The inconvenience and time cost - especially the First-Amendment-related time cost to reporters and editors who could be doing other journalistic work - matter, too. Finally, the cost - from both a financial and First Amendment standpoint - of the damages award against the party who loses the fight if the wrong law is applied can be even more disturbing.
Thus, the Connecticut newspapers are hardly putting up a merely technical fight. They are fighting to keep the money they use to run the newspapers and websites, rather than spending it all on lawyers' fees. They are also fighting to let their editors and reporters spend their business hours on news, not litigation.
Most importantly, the Connecticut newspapers are fighting for First Amendment principles - to have the law of the State with the most pro-free speech laws applied, so that they can thrive in their role of society's watchdog. (It is worth remembering that the articles that triggered the Young suit deal with the important matter of prison conditions.)
Why National Media Companies Care About Local Newspapers' Fate in the Suit
Twenty-six media companies and trade associations, including the New York Times, the Washington Post, and the Associated Press, have filed "friend of the court" briefs on behalf of the Connecticut newspapers. What interest, you might ask, could these national companies have in a dispute that depends heavily on the Connecticut newspapers' being local in their circulation?
One answer is that, like their Connecticut counterparts, it is possible for even a national publication to have low readership in certain states. Another is that these national entities may foresee that the resolution of this dispute could affect how another, future question is resolved: Can a U.S. newspaper that runs a website accessible internationally be sued anywhere its website is read?
However, media companies could be financially crippled by the need to respond to foreign lawsuits. Indeed, the risk of liability, and the potential costs of travel and retaining foreign attorneys, could be great enough that they might have to limit their websites to the U.S. only - a loss to free speech here and abroad.