Online Speakers – Where Can You Be Sued?
April 5, 2021
Types : Alerts
If you use any social network, your posts can go everywhere. But does that mean you can be sued anywhere? Despite plaintiffs’ lawyers increasingly creative efforts to persuade courts otherwise, judges are now consistently holding that the geographically unbounded nature of internet speech does not trump the requirement to establish constitutionally-valid personal jurisdiction. Most recently, the Sixth Circuit, in the high-profile case of Blessing v. Chandrasekhar, 988 F.3d 889 (6th Cir. 2021), rejected an attempt to expand the reach of Kentucky’s longarm statute to defendants whose only link to the state was the fact that the plaintiffs, who were subjects of allegedly harmful internet posts, lived there.
The Blessing case is one of several arising out of the January 2019 confrontation in front of the Washington Monument between students—who were in Washington, D.C. for a March for Life—from Kentucky’s Covington Catholic High School and a Native American activist. Comedian Kathy Griffin tweeted several times about the incident. One of those tweets included a link to the video of the confrontation along with the caption:
“Name these kids. I want NAMES. Shame them. If you think these fuckers wouldn’t dox you in a heartbeat, think again.”
She tweeted two more times, again encouraging her millions of followers to publicly name the teenagers involved in the incident. Based on these tweets, the Covington Catholic students sued Ms. Griffin, a California resident, in the U.S. District Court for the Eastern District of Kentucky for statutory civil harassment, harassing communications, menacing, and terroristic threats along with common law invasion of privacy. The lawsuit also named as a defendant Dr. Sujana Chandrasekhar, a New Jersey resident who also posted tweets encouraging users to publicly name the students.
The students did not merely claim that the tweets constituted tortious conduct. Instead, in an effort to overcome the personal jurisdictional threshold, they asserted that Ms. Griffin and Dr. Chandrasekhar violated state criminal statutes. The students’ somewhat convoluted theory was that, because the tweets (allegedly) constituted crimes, and because Kentucky provided a private right of action for violation of those criminal statutes, then Kentucky was a proper forum because Kentucky’s longarm statute confers jurisdiction over those who “cause injury by act or omission in” Kentucky. According to the students, the laws “criminalizing harassment, threats, and menacing” focus on the harm caused and, thus, the “victim’s receipt of the threat is the foundational act” supporting personal jurisdiction under the longarm statute.
The Sixth Circuit thoroughly rejected the students’ bid to avoid the statute’s “obvious textual barrier” to their argument; that is, the statute’s requirement that the offending acts–not the consequences of those acts–happen in Kentucky. Moreover, it was not obvious that Kentucky was even the site of the harm, which could have been felt anywhere. The court also recognized that the students’ reliance on the proposition that, “where a legal right exists, a legal remedy exists,” “confused the issue of whether they have a claim at all with the issue of whether they may subject defendants to litigation in their chosen forum.” Holding otherwise would have gutted the personal jurisdiction doctrine.
And filing suit in the wrong jurisdiction can backfire when the court finds that there was bad faith involved. In Twin Flames Universe.com, Inc. v. Cole, 2021 WL 1105247 (E.D. Mich. Mar. 23, 2021), which cites Blessing and was decided just a couple weeks ago, the district court dismissed and refused to transfer a case involving allegedly harmful internet speech. The plaintiff, a “set of organizations devoted to spiritual wellness, relationship guidance, and self-love through a connection with your Twin Flame,’ or your true love,” filed a lawsuit in Michigan against, among others, non-resident family members of current members who made allegedly harassing social media posts and spoke to reporters about the organization. In responding to a motion to dismiss, the plaintiffs requested that the case be transferred to Arizona (where the defendant who filed the motion to dismiss resided) if jurisdiction in Michigan wasn’t appropriate. The district court denied that request, finding the filing was made in bad faith based in part on plaintiffs’ threatening cease-and-desist notice, which contained the following language:
We will also pursue you to the FULLEST extent of the law for your crimes. We will subpoena every single social media outlet for your identities, your IP addresses, your computers and hard drives, your google accounts for every single defamatory and illegal thing. Computer professionals with warrants will follow every detail of your digital footprint and collect all of the evidence. Police and detectives will be sent to each and every one of your homes to investigate you thoroughly. We will drag you in and out of court for a long, long time…[w]e will subpoena you ALL to courts in Michigan, where you don’t live, and you will have to pay travel expenses, hotels, food, court fees, lawyer fees in addition to the money we will sue you for.
It is becoming increasingly clear that courts are unwilling to ignore jurisdictional rules for internet-speech claims, which courts no longer view as novel. This clarity is surely good news for defendants, as the practice of filing lawsuits in an improper jurisdiction often seems to be done just to provoke costly and unnecessary motions practice. Courts ought not to be used as leverage to gratuitously inflict expense on an opponent, and judges are busy enough as it is.