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Thursday, February 07, 2019

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Interesting indeed. But, one may doubt such legal analysis (philosophically rather, not in precedent terms).For the test should be, not whether the person has focused on Michigan state while publishing or doxing defamatory items circulated in the Internet, but rather:

Whether, a reasonable reader,third party,in Michigan, would or could perceive the publication or circulation, as true or reasonably true. In this regard,other defendants could be held accountable in procedural or jurisdictional terms, and being compelled to face trial in Michigan.

So, that Weikart for example, that tweeted that Joel " was the attacker " the judge asserts that:

" And nothing about the tweet suggests he was targeting a Michigan audience...."

But later states that :

" True, Weikart may have known the harm from his tweet would be felt in Michigan "

End of quotation:

But all this has to do with the author,the perpetrator, not the reasonable reader in Michigan.For,this is the substantial test,let alone in the Internet era.

For the rest,we won't stay young here....


Posted by: El roam | Feb 7, 2019 9:26:37 AM

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