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Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


If you look at the recent E.D. Mich. case I blogged about (https://prawfsblawg.blogs.com/prawfsblawg/2019/02/more-personal-jurisdiction-on-the-internet.html) arising from reports about the murder of Heather Heyer in Charlottesville, the news organization defendant did not contest jurisdiction in Michigan; only the three individual defendants (from California, Indiana, and Wisconsin) did.

Posted by: Howard Wasserman | Feb 20, 2019 2:05:59 PM

Yeah, but personal jurisdiction seems obvious here, since it is the paper (rather than individual reporters) that intentionally distributes its publication nationwide, including in Kentucky. It was poorly pleaded, but I would be surprised if WaP contested jurisdiction.

Posted by: Howard Wasserman | Feb 20, 2019 2:03:20 PM

The WaPo lawsuit merely recited the Kentucky long arm statute without any elaboration.

Posted by: Paul Washington | Feb 20, 2019 1:47:00 PM

I saw many commenters say that they hoped their school would punish them, that the Covington diocese should act, and that their prospective colleges should reject them. The first two are aimed at Kentucky actors; the third likely includes some Kentucky colleges with that many Kentucky students.

Did those commenters merely toss those out for their fellow non-KY readers to see their wishes, or did they hope that they'd be conveyed to the KY readers? What about those who tweeted or posted and tagged KY institutions?

Posted by: Joe Reader | Jan 28, 2019 5:31:10 PM

If a physical publication were circulated in Kentucky, there would likely be jurisdiction under Keeton. With material on the web, much less likely. Knowledge of an effect is not purposeful availment under Walden v. Fiore, even if the effect is in the plaintiff's home state. (Admittedly, the Court's pro-law-enforcement bias might have led it to restrict the ability to sue for what was essentially a theft.)

Posted by: Anonymous | Jan 28, 2019 12:34:58 PM

It would fit, actually, because that was against the editor and writer as individuals, not against the news organization. The question would be how the Court regards a tweet or online story--does it intentionally go out everywhere?

Posted by: Howard Wasserman | Jan 23, 2019 5:01:52 PM

It's been a little while since my Civ Pro class, but would the circulation of the publication (assuming the defendant is a media company) in Kentucky be sufficient?

I'm thinking of the Shirley Jones case, but I don't recall enough about that case to know if it would apply here.

Certainly the analysis would be different against an individual defendant, say, a celebrity who made a disparaging comment on twitter.

Posted by: Paul Washington | Jan 23, 2019 3:27:53 PM

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