Recent Developments in Defamation Law: Print, Internet Newspapers Wrestle with Questions of Jurisdiction

By Anna Nguyen, Silha Research Assistant

The U.S. Court of Appeals (4th Cir.) in Richmond, Va. decided on Dec. 13, 2002, that a Virginia prison warden may not bring a libel suit in Virginia over articles appearing on the Web sites of two Connecticut newspapers.

The Fourth Circuit ruled in Young v. New Haven Advocate, et al., 315 F.3d 256 (2002), that Young could not sue The Hartford Courant and the New Haven Advocate for posting articles on the Internet about Connecticut's policy of housing its prisoners in Virginia institutions, reversing a federal district court's ruling.

The court considered its own precedent in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F. 3d 707 (4th Cir. 2002), to determine its authority to exercise personal jurisdiction over an out-of-state person who places information on the Internet. In ALS, the court held that "specific jurisdiction in the Internet context may be based only on an out-of-state person's Internet activity directed at [the forum state] and causing injury that gives rise to a potential claim cognizable in [that state]."

Judge M. Blane Michael, writing for the appeals court, explained, "a court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their Web sites or the posted articles at a Virginia audience."

The stories written by the two newspapers focus on Connecticut's overcrowding in its maximum security prisons in the late 1990s. Connecticut established a contract with Virginia to house Connecticut prisoners in Virginia correctional facilities to ease the problem. In late 1999, Connecticut transferred about 500 prisoners, mostly African-American and Hispanic, to the Wallens Ridge State Prison in Big Stone Gap, Va. where Young is the warden. On March 30, 2000, the New Haven Advocate published a news story about the transfer. The article by Camille Jackson discussed the allegedly harsh conditions of Virginia prisons and that the long trip to southwestern Virginia to visit would be difficult or impossible for the prisoners' families. She also mentioned a class action that inmates from Connecticut had filed against Young and the Connecticut Commissioner of Corrections. The inmates alleged a lack of proper hygiene and medical care, and denial of their rights to engage in religious practices. The last paragraph of the articles expressed the concern of a Connecticut state senator about Confederate Civil War memorabilia in Warden Young's office.

At about the same time, The Hartford Courant published three columns by Amy Pagnozzi, questioning the relocation. In one column, Pagnozzi called Wallens Ridge a "cut-rate gulag." Warden Young was not mentioned in any of Pagnozzi's columns.

On May 12, 2000, Warden Young sued the two newspapers, their editors, and the two reporters for libel in a diversity action filed in the federal District Court in Big Stone Gap, Va. Young claimed that the articles implied that he "is a racist who advocates racism" and "encourages abuse of inmates by the guards" at Wallens Ridge. He emphasized that the two newspapers circulated the allegedly defamatory articles throughout the world by posting them on their Web sites.

The newspaper defendants filed motions to dismiss the complaint, claiming that the district court lacked personal jurisdiction over them. The two newspapers provided evidence that the reporting of the story was not done in Virginia. The New Haven Advocate had no subscribers in Virginia, while the Hartford Courant had eight subscribers. The content of their Web sites was not aimed at Virginia residents, they argued. The district court had denied the defendants' motion to dismiss under Virginia's long arm statute because the Internet activity in Connection resulted in an injury to Young in Virginia. The panel concluded that Connecticut, not Virginia, was the focal point of the articles and Internet activity.

Similarly, the U.S. Court of Appeals of New Orleans (5th Cir.) in Revell v. Lidov 317 F.3d 467 (2002), held on Dec. 31, 2002 that Oliver "Buck" Revell, a former FBI agent, could not bring a libel suit in Texas over an article posted by Hart G. Lidov on a Internet bulletin board operated by Columbia University in New York. The case was on appeal from the federal District Court in Dallas (Revell v. Lidov, 2001 U.S. Dist. LEXIS 3133 (N.D. Tex. 2001)), which granted motions to dismiss because defendants lacked minimum contacts with the forum state. Revell lived in Texas when the article was posted on the Internet.

The article charged members of the Reagan administration with having previous knowledge of the terrorist attack of Pam Am flight 103 which exploded over Lockerbie, Scotland, in 1988. Lidov accused Revell of being involved in the conspiracy and of making sure that his son, who was booked on flight 103, changed his flight.

Circuit Judge Patrick E. Higginbotham wrote that Revell failed to plead a prima facie case of personal jurisdiction over Columbia University or Lidov. The court affirmed the district court's decision based on the "effects" test of Calder v. Jones, 104 S. Ct. 1482 (1984). In Calder, an editor and a writer for the National Enquirer, both residents of Florida, were sued in California for libel arising out of an article published in the Enquirer about Shirley Jones, an actress. The Supreme Court upheld the exercise of personal jurisdiction over the two defendants because they had "expressly aimed" their conduct towards California.

Applying the Calder test to Revell's claims, the panel concluded that the low-level of interactivity of the Internet bulletin board showed a lack of contacts with Texas. Therefore, it was insufficient to establish jurisdiction for its courts.

In addition, Texas was found not to be the focal point of the Lidov's article. The article did not contain any references to Texas and was not aimed at Texas readers. Columbia's Web site had fewer than 20 subscribers from Texas in 2000 and 2001, according to the court.

Griffis v. Luban update
The U.S. Supreme Court denied a petition for certiorari in Griffis v. Luban, 2002 Minn. LEXIS 461 (Minn. 2002) on March 10, 2003. (See "Minnesota Supreme Court Rules on Internet Libel Case" in the Summer 2002 Silha Bulletin; see also



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