M.D. Fla. Internet Jurisdiction Case – Internet Solutions Corporation v. Marshall

April 8, 2008

The Middle District of Florida ruled yesterday in Internet Solutions Corporation v. Marshall, dismissing the case for lack of personal jurisdiction. The plaintiff, a Florida corporation, was upset about blog postings by Ms. Marshall that criticized the company. The company filed a defamation suit in Florida, hoping to drag Ms. Marshall here to defend the case, and to take advantage of the fact that Florida law does not protect free speech any more than the federal Constitution forces it to.

While this case is not really a landmark case — it followed well-worn grooves in the law — it is important to publicize these cases as much as possible. Time and again, I see attorneys in this state ignore their oath of attorney and file defamation suits here, hoping to simply punish the defendant by making him or her defend the case here.

Plaintiffs attorneys who try and skirt the due process clause inevitably try to rely on Calder v. Jones. However, as the Middle District of Florida shows (and as have other courts), this is a pre-internet case, and does not apply to websites the way it applies to newspapers.

ISC contends that Marshall committed tortious acts by posting defamatory comments on her website and targeting individuals in Florida. ISC further alleges that Marshall’s conduct resulted in contact or communications “into” Florida. However, “the minimum contacts must be ‘purposeful’ contacts.” Goforit, 513 F. Supp. 2d at 1329 (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir. 1994)). In Calder v. Jones, the United States Supreme Court found that an alleged single tortious act by a National Enquirer editor and reporter in Florida was sufficient to satisfy minimum contacts with the forum state of California. Calder v. Jones, 465 US 783, 789-790 (1984). The two National Enquirer employees were Florida residents who were sued in California for libel.

The court reasoned that the writers purposefully availed themselves by specifically targeting a California audience, making large distributions into California, and publishing articles about a California resident. Id. The court further explained that the alleged tortious conduct was purposeful and calculated to cause injury in California and therefore the editors must have reasonably anticipated being haled into a California court. Id. at 790-791. Unlike Calder, in the case at bar there is no evidence that Marshall specifically targeted Florida residents. Marshall’s website was not only made available to Florida residents, but the website was equally accessible to persons in all states. Under the Calder analysis, even if Marshall’s alleged tortious conduct occurred or resulted in injury in Florida, the single tortious act would not be sufficient to satisfy minimum contacts absent a showing of purposeful availment. According to Marshall’s affidavit, her contacts with Florida were nearly nonexistent.3 (Doc. 5 at 2-4.) ISC has not provided evidence to the contrary. Besides the web site postings do not establish any Florida-specific postings or conduct by Marshall.

Time and again, when these cases are brought before intelligent, thoughtful, and reasonable judges, the judges side with the due process clause of the Constitution, and not plaintiffs’ attorneys who knew, or should have known, that bringing suit here was improper.

The decision is here. ISC v. Marshall, Case No. 6:07-cv-1740-Orl-22KRS (M.D. Fla. April 7, 2008).

For background on the case-in-chief take a trip over to the Citizen Medial Law Project post on the case.

New Jersey’s Long Arm of the Law

August 9, 2007

New Jersey’s long arm statute seems to have stretched a little too far in this decision. In Goldhaber v. Kohlenberg, the New Jersey Court of Appeals ran through a litany of internet jurisdiction cases, most of which held that a defamation defendant doesn’t get to sue in his home court — but must sue in the speaker’s home court. Unfortunately for free speech, the New Jersey court decided that since the speaker talked about Jersey a little too much, then Jersey jurisdiction it is.

The author not only knew that plaintiffs resided in New Jersey, he knew the municipality in which they resided and made specific disparaging references to that municipality in many of his postings. Certain of his postings were made in response to plaintiffs’ replies to the offending comments. He also made insulting comments about that municipality’s police department. In addition, he referred to plaintiffs’ neighbors in the apartment complex in which they resided and at one point even posted their address. Conduct of that nature and its connection to New Jersey “are such that [defendant] should reasonably [have] anticipate[d] being haled into court” here.

See also this post.

2d Circuit Internet Defamation/Jurisdiction Case

June 29, 2007

Internet jurisdiction is a mishmash of theories that provide little predictability. However, I have often argued that when it comes to defamation actions, the rule should be that jurisdiction is only proper where the publication took place.

Think about it. Lets say that you have a blogger in a civilized state, like Oregon, that protects free speech to an extent greater than that required by the First Amendment. Said blogger is used to exercising his free speech rights as if his rights were protected by Article 1, Section 8 of the Oregon Constitution. He writes about someone in Florida, which is generally not very protective of Free Speech rights. Should the speech be subject to Florida’s standards Oregon’s? If you believe that the state where the subject of the defamation is located should have jurisdiction, you haven’t thought the issue through. Imagine a travel writer in Maine, writing about hotel stays on a 50-state tour. Would he properly be hauled into court in each and every state if the hotel owners found the reviews to be unflattering? What would that do to our notions of free expression?

Just as importantly, should a censorship-monkey who wants to silence the speaker be permitted to drag him all the way across the country to defend his actions? That alone would create a deathly chilling effect. I don’t often write about Microsoft, but what if I did? Should I have to presume that I will wind up in court in Seattle?

Fortunately, courts seem to be consistent when it comes to internet jurisdiction in defamation actions. The Second Circuit is the highest court to rule on this issue so far. It held in Best Van Lines v. Walker that New York’s long-arm statute did not permit New York courts to exercise jurisdiction over a defendant who published his opinions in Iowa. This is a well-reasoned case, and the latest in a good trend. Lets hope that the trend continues so that when censorship-monkeys want to try and silence someone and defile the First Amendment, then the censorship-monkeys should be the ones inconvenienced — not the citizen who is exercising his First Amendment protected right to free speech.

See also

Lexington v. Siskind. This was a Florida Circuit Case where a builder, Lexington Homes, tried to haul a New Yorker down here to defend his criticism of the company.

Dring v. Sullivan. Same principles, successfully argued by Jon Katz.

Don’t Date Him Girl Suit Thrown Out on Jurisdictional Grounds

April 11, 2007

This is interesting from an internet jurisdiction perspective – but also as another reminder that there is no better way to make sure that lies about you are repeated, ad nauseum, than by filing a lawsuit over them. Nevertheless, this stuff is probably defamatory and the defamed individual certainly has a point. Some bitter ex girlfriend posted that he was unfaithful, has an STD, etc.

However, the Pennsylvania court held that since the Defendant didn’t have strong contacts to the forum state, the court could not exercise jurisdiction. This seems to follow a trend in internet jurisdiction cases in the libel context.

Here are a few other internet defamation cases that were eventually thrown out on jurisdictional grounds.

Lexington v. Siskind was decided similarly as was Dring v. Sullivan, 423 F. Supp. 2d 540 (D.Md. 2006) (argued by fellow First Amendment Lawyers’ Association member, Jonathan Katz).

Of course, internet jurisdiction cases in general are all over the place. But, it seems that courts recognize that when it comes to free speech rights, the rules are a little different. If you can drag someone in to court 3,000 miles from home for a defamation action, don’t you essentially automatically win? Sure, the defendant could prevail, however if courts broke from this trend, it would be terribly chilling. Fortunately, most courts seem to get this one right.