Posted on Mon, Feb. 25, 2002
Flame Wars & Free Speech
BY LESLIE BROOKS SUZUKAMO
Pioneer Press
Like many of the hottest arguments or "flame wars" taking place in cyberspace these days, the one between Katherine Griffis of Alabama and Marianne Luban of Minnesota involved a subject so arcane it would baffle most outsiders Ñ in their case, who was the better Egyptology expert.
But instead of burning out, as most of these spats do, their disagreement will land them before the Minnesota Supreme Court next month.
Minnesota's highest court will be asked to consider whether Luban, a former St. Paul resident who has since moved, can be sued for libel in Alabama for what she said about Griffis on an Internet discussion board, where members post e-mail for the entire group to read.
Luban also is asking the Minnesota court if Alabama's courts can muzzle her on the Internet, restricting what she sees as her constitutional rights to free speech.
Depending on how it rules, the state Supreme Court could put some brakes on the normally freewheeling give-and-take on the Internet, at least, for Minnesotans.
Or the high court could make it extremely difficult and costly for out-of-state people to stop someone in Minnesota from posting untrue and damaging statements on computers worldwide, including in the injured party's hometown.
It's believed the case will mark the first time the Minnesota Supreme Court will be asked to decide a free speech issue on the Internet, the world's newest mass medium. The only previous high court Internet decision dealt with online gambling.
The case also is unusual because even though it evokes some of the country's most famous constitutional cases involving the First Amendment, it involves two ordinary people and not traditional mass media like newspapers, nor the public officials or celebrities who sometimes sue them.
Luban, who is appealing her case to the Supreme Court, says she is fighting for not only her right to free expression but for everyone in the state who uses the Internet.
"I feel I have the right to expressing myself on the Internet without feeling intimidated," she said in a recent telephone interview. "This," she said, referring to Griffis' lawsuit, "is intimidation."
The dispute dates to 1996, when Luban, a self-taught Egyptology expert in her 50s, got her first personal computer and logged onto the Internet.
She found an Egyptology discussion group and soon got herself embroiled in arguments online with Griffis, who has taught non-credit college courses on ancient Egypt and Egyptology to the public periodically at the University of Alabama at Birmingham since 1980, according to her court filings. Griffis is not a university professor but is a member of an international Egyptology association who does consulting on the subject, according to court documents and her attorney.
The argument grew heated, with Luban at one point questioning Griffis' claims of expertise and credentials, calling Griffis "a phony," "a liar," "a con-artist" and someone who got her degree from "a Cracker Jack box," court filings say.
Griffis sued Luban in Birmingham for libel, saying Luban falsely accused her of lying about her credentials, the nature of her work at the university, her expertise in studies about Egypt and the legitimacy of her consulting business.
When Luban failed to show up at the court hearing in Birmingham, the court awarded Griffis $25,000 in damages in a default judgment and issued an injunction that barred Luban from continuing to talk about Griffis on the Internet that way.
Luban, who said she didn't show up for her hearing in Alabama because she thought the whole affair ridiculous, appealed the case when Griffis filed a lawsuit in Ramsey County to collect the money. Along the way, Luban also filed for bankruptcy and says she cannot work because of a disability. She also has moved out of the Twin Cities and declined to disclose the location of her new home.
JURISDICTION AN ISSUE
The first main question that will be argued before the court on March 6 will be: Where should the lawsuit have been filed Ñ Alabama or Minnesota?
If the courts agree with the Minnesota Court of Appeals that Griffis had the right to file it in Alabama, it would present an unfair burden upon ordinary citizens to have to travel across the country to defend themselves in other states for what they may have posted on the far-reaching Internet, argues Luban's attorney, John Borger.
The law expects that businesses answer for their actions in places where they have a significant presence, but it doesn't expect citizens not engaged in commerce to have to defend themselves where the only contact is e-mail, he argued.
Borger will also try to argue that the Alabama court injunction was an unconstitutional "prior restraint" upon Luban's speech, violating the First Amendment. The Supreme Court may choose not to address that issue, however, since the Court of Appeals declined to rule on it, saying it was enough to simply uphold the right of Griffis to sue in Alabama.
"I'm not saying that speech on the Internet is protected from libel law," said Borger, who regularly represents media outlets and is representing Luban for free. "But we're saying they should sue after it happens." Borger is arguing that while the courts say Luban forfeited the chance to argue her case by failing to show for her Alabama hearing, she shouldn't have been forced to travel down South in the first place Ñ the libel complaint should have been brought in Minnesota first.
Internet news groups, as the electronic bulletin boards are called, are no strangers to the sort of jousting that marked the dispute between Griffis and Luban.
"When I tried to explain it to my 15-year-old, he said, 'Heck, you ought to win because people get on the Internet all the time and talk trash,' " Borger said.
INJUNCTION
But this goes beyond a little trash talk, said Peter Erlinder, Griffis' attorney. Luban targeted her statement to hurt his client's consulting business in Alabama, he argued.
Usually, a libel suit or threat of one keeps publishers and broadcasters from making false or reckless charges, said Erlinder, a law professor at the William Mitchell College of Law in St. Paul.
But the Internet gives a person with a computer and a modem the power to reach millions of people around the world at practically no cost, he said. And if a person has declared bankruptcy as Luban did, there is no financial incentive to think twice about letting fly with irresponsible or false information, he said.
Furthermore, if the Minnesota Supreme Court rules the Alabama court did not have jurisdiction in this case, it would mean that people wronged on the Internet might unfairly have to travel far and wide to defend their reputations, Erlinder argued.
Erlinder said it is too much of a burden to require people like Griffis to travel to the home states of people they have to sue Ñ the exact reverse of Luban's arguments.
So far, Griffis has Minnesota's top courts on her side. The Minnesota Court of Appeals in its ruling upheld Alabama's jurisdiction because Luban knew her statements would harm Griffis in Alabama, and Luban's assertion that she didn't know Griffis lived or worked in Alabama "rings false," the court said.
"She shouldn't be surprised she was hauled into court in Alabama Erlinder said.
The injunction, the only part of the suit with any teeth left, only seeks to keep Luban from repeating specific libelous statements, not from commenting on other aspects of Griffis' Egyptology work, Erlinder added.
However, Borger said the Ramsey County court ruled Griffis unfairly tried to punish Luban for saying things not in the original Alabama injunction. The Minnesota Court of Appeals or Supreme Court will decide who's right on this question.
APPEAL NEXT?
Legal scholar Sandra Davidson, a law and media professor at the University of Missouri, was troubled by the injunction, saying it appears to tread on a landmark 1931 U.S. Supreme Court decision in another case from Minnesota called Near vs. Minnesota.
In that case, publisher Jay Near successfully fought attempts by Minnesota authorities to shut down his racist, anti-Semitic weekly paper when the court forbid the prior restraint of a publication.
"This is not the Wild West with all new law," Davidson said. "The (U.S.) Supreme Court says we apply old law to new technologies."
he believes that another case, Sullivan vs. the New York Times from 1964, may make it harder for Griffis to prove she was libeled. The U.S. Supreme Court required public officials and figures to prove actual malice," a very high standard designed to protect falsehoods as long as the person uttering them didn't know they were wrong or didn't show "reckless disregard" for the truth.
By entering the online bulletin board and voluntarily injecting herself into a public discussion, Griffis may be required to meet that higher standard as a public figure, Davidson said. "The law was not meant to coddle people who are overly sensitive," she said.
However, Dan Burk, a professor and Internet expert with the university of Minnesota School of Law, said a 1984 U.S. Supreme court case in which actress Shirley Jones sued the National Enquirer may prove Luban's undoing.
Jones, who lived in California, sued the Florida-based Enquirer for libel in her home state.
A lower court threw out the suit, saying letting it stand would put a chilling effect on free speech.
But the U.S. Supreme Court upheld an appeals court ruling that held the Enquirer had to answer to the charges because it knew its story would harm Jones in California where she lived.
"If it's a damaging thing you're saying, it's most damaging where your neighbors might hear it and your family might hear it," Burk said.
Meanwhile, Luban says she's not made any more comments about Griffis since the injunction. "Minnesota residents should, right now, be extremely careful of what they write on the Internet Ñ or anywhere else," Luban said in an e-mail.
 |
 |
Posted on Thu, Mar. 07, 2002
Tech Law: cyberspace defamation
BY
LESLIE BROOKS SUZUKAMO
Pioneer
Press
Minnesota's
Supreme Court dipped its toes into the Internet Wednesday when it heard oral
arguments in a defamation suit involving online free speech.
At issue: If
someone is defamed in cyberspace, where in the physical world should the
lawsuit be filed? Where the Minnesota defendant lives? Or where the Alabama
plaintiff lives?
The case is
believed to be the first by the state's highest court to consider free-speech
issues on the Internet.
It involves
two women who were members of an Internet discussion group on Egyptology, the
study of ancient Egypt.
The defendant,
Marianne Luban, formerly of St. Paul, questioned the credentials of Alabama
resident Katherine Griffis, who runs an Egyptology consulting business and
teaches noncredit classes on the subject at the University of Alabama in
Birmingham.
Griffis sued
Luban in Alabama for defamation in 1997 and won a $25,000 default judgment. She
also won an injunction telling Luban not to repeat her comments after she
failed to show up for the hearing.
Luban, who
said she couldn't travel to Alabama, appealed the case when Griffis later sued
in Minnesota to collect her money.
Now, the
Minnesota Supreme Court is being asked to decide where the lawsuit should have
been filed first.
Should it have
been filed in Alabama, where it was most convenient for Griffis but not for
Luban, who has since declared bankruptcy? Or should Griffis have been required
to fly north to try to put a legal cork on Luban's personal computer?
The court also
was asked by Luban to throw out the injunction, as well, because it was an
unconstitutional infringement on the Minnesotan's free-speech rights.
"We now
live in a world where you can put words into space," Justice Russell A.
Anderson observed at one point in the debate, which was held at the University
of Minnesota Law School before a packed auditorium of students. "Are we
living in a world where wherever they land, we have jurisdiction?"
Attorney John
Borger, an experienced media lawyer who is representing Luban for free, argued
the court should throw out the Alabama court judgment.
Otherwise,
Minnesotans could be dragged across the country to answer even trivial
complaints about what they say in e-mail, in Internet chat rooms or on
electronic bulletin boards, sometimes called listservs.
"It could
be too easy to use as a tool to thrash free-speech rights of the
individual," Borger said.
But attorney
Peter Erlinder, a professor at William Mitchell School of Law in St. Paul who
is representing Griffis, countered that Luban shouldn't have been surprised she
was sued in Alabama because she knew the things she was saying would have their
greatest impact in the state where Griffis lived.
"Under
the circumstances, the damage is potentially devastating," Erlinder
argued, saying that museum curators, archeologists and others who might use
Griffis' consulting services are members of the e-mail discussion group where
Luban's criticisms were posted and could have read them.
In a boost for
Griffis' case, the Minnesota Court of Appeals on Tuesday reversed a Ramsey
County District Court ruling that struck down the injunction as a prior
restraint on Luban's rights to free speech.
The Appeals
Court instructed the case be sent back to Ramsey County District Court to be
reheard.
Borger said he
will talk to his client, Luban, to see if she wants to try to appeal that part
of it to the Minnesota Supreme Court directly. The high court could also take
up the matter on its own as part of the case heard Wednesday.
Chronicle of Higher Education, July 12, 2002
Minnesota Court Rejects Out-of-State Defamation Suit Over Scholars'
Online Spat
By SCOTT CARLSON
A decision on Thursday by the Minnesota Supreme Court could
influence libel cases connected with chat rooms, newsgroups, and e-mail
discussion lists. The court ruled that an Alabama scholar could not enforce a
libel ruling from her state after a Minnesota scholar criticized her in an
online newsgroup.
The case involves two Egyptologists, Marianne Luban and Katherine
Griffis, who exchanged a series of testy messages on a public archaeology
newsgroup in 1996 and 1997. According to court documents, Ms. Luban, who lives
in Minnesota, questioned Ms. Griffis's credentials, saying she had gotten her
degree from a "box of Cracker Jacks."
Ms. Griffis, who teaches noncredit courses on Egypt at the
University of Alabama at Birmingham, filed a lawsuit in Alabama district court.
Ms. Luban did not show up for trial, so the court awarded Ms. Griffis $25,000
in damages. But when Ms. Griffis filed the judgment in a Minnesota county
court, Ms. Luban challenged it, contending that the Alabama court did not have
jurisdiction.
Lawyers for Ms. Griffis contended that because Ms. Luban's
withering postings mentioned Ms. Griffis's business and reputation in Alabama,
Ms. Griffis should have the right to try the case in Alabama. The plaintiff based
her case on Calder v. Jones, a 1984 U.S. Supreme Court ruling in
which the Hollywood actress Shirley Jones was allowed to sue the Florida-based National
Enquirer in a California court.
But the Minnesota Supreme Court said in its
opinion on Thursday that the lower court's interpretation of Calder was too
broad and that Ms. Luban's statements were not "expressly aimed" at
Alabama.
"The State of Alabama was no more involved in this than was
Minnesota or Missouri," said John P. Borger, a lawyer for Ms. Luban.
"We're very pleased."
But C. Peter Erlinder, a lawyer for Ms. Griffis and a professor at
the William Mitchell College of Law in St. Paul, said that the court had
"misread" the Calder decision. He said the decision
could make libel suits difficult for people who are falsely criticized online.
"The concern that I have is that it would be possible for a
person anywhere in the world to make specific comments about a person's
professional life, business, and professional credentials ... and put that person
in the position of having to go someplace else in the world to defend
themselves."
Minnesota Supreme Court
Griffis v. Luban, 646 N.W. 2d 527 (Minn. 2002)
BLATZ, Chief Justice.
Respondent Katherine Griffis brought suit against appellant
Marianne Luban in
Jefferson County, Alabama, alleging defamation and invasion
of privacy arising out
of statements made by Luban on the internet. Luban did not
appear in the
Alabama action, and the Alabama district court entered a
default judgment for
$25,000 in damages and issued an injunction prohibiting
Luban from making
certain statements in the future. Griffis filed the Alabama
judgment in Ramsey
County District Court, and Luban brought a motion to vacate,
challenging the
jurisdiction of the Alabama court. The Ramsey County
District Court upheld
personal jurisdiction of the Alabama court over Luban, and
the court of appeals
affirmed. We reverse.
Respondent Katherine Griffis, an Alabama resident, has
taught noncredit courses
in ancient Egyptian history and culture at the University of
Alabama, Birmingham.
Griffis also works as a self-employed consultant. Appellant
Marianne Luban, a
Minnesota resident, maintains a nonprofessional interest in
the history and culture
of ancient Egypt. Both Luban and Griffis have participated
in an internet
newsgroup on archeology, the sci.archaeology newsgroup,
since at least 1996. A
newsgroup is a forum for internet users that addresses a
specific topic and allows
participants to exchange information and engage in discussions
or debate by
"posting" messages on the website. The
sci.archaeology newsgroup is public and
so messages posted there can be accessed anywhere by any
person with internet
access.
During the latter part of 1996 a disagreement arose between
Luban and Griffis
relating to the subject of Egypt and Egyptology. In December
1996 Luban posted
a message challenging Griffis's credentials as an
Egyptologist, and accusing Griffis
of obtaining her degree from a "box of Cracker
Jacks." Griffis states that she
responded by citing her credentials in an electronic message
sent directly to Luban.
The disagreement continued into 1997, with both Luban and
Griffis continuing to
post messages relating to their disagreement on the
sci.archaeology newsgroup.
In May 1997, Griffis's attorney sent a letter to Luban
demanding that Luban refrain
from attacking Griffis's character and professional
reputation. The letter threatened
legal action if Luban did not retract the prior statements
and refrain from future
attacks. Although Griffis asserts that Luban continued
posting defamatory
messages after receiving this letter, the record before us
does not include any
statements made by Luban, whether on the sci.archaeology
newsgroup or
elsewhere, after March, 1997.
In September 1997, Griffis brought a defamation action
against Luban in Alabama
state court. Griffis's complaint alleged that Luban posted
statements on the
newsgroup asserting that Griffis obtained membership in the
International
Association of Egyptologists and inclusion on other lists of
Egyptologists by
misrepresenting her qualifications, that Griffis was a liar,
was not affiliated with the
University of Alabama, did not have a juris doctor degree,
and that Griffis's
consulting business was not legitimate. Because Luban was
advised by her
attorney that the Alabama state court did not have personal
jurisdiction over her,
she did not answer the complaint or make any appearance in
the Alabama action.
On December 17, 1997, the Alabama court entered a default
judgment against
Luban. The court assessed damages in the amount of $25,000
and also issued an
injunction specifically enjoining Luban from publishing
certain statements in the
future.1
On May 5, 1998, Griffis filed the Alabama judgment in Ramsey
County District
Court in order to enforce its terms against Luban. Luban
moved to vacate the
judgment on the basis that the Alabama court lacked personal
jurisdiction over her.
A referee initially granted Luban's motion, but on
reconsideration concluded
that the Alabama court had personal jurisdiction over Luban
and ordered entry of
a Minnesota court judgment against Luban. On appeal, the
court of appeals
vacated the referee's order because it had not been confirmed
or countersigned by
a district court judge. In the interim, Luban petitioned for
bankruptcy, and on
March 15, 2000, the bankruptcy court discharged the $25,000
judgment from the
Alabama court.
In March 2000, Luban renewed her motion in district court to
vacate the Alabama
judgment, and Griffis filed a cross-motion to enforce the
Alabama injunction. The
court found that the Alabama district court had personal
jurisdiction over Luban
and therefore the judgment must be given full faith and
credit. Judgment was
entered on December 21, 2000. On Luban's appeal, the court
of appeals affirmed,
ruling that the district court did not err in its
determination that the Alabama court
properly exercised personal jurisdiction over Luban. Griffis
v. Luban, 633
N.W.2d 548, 553 (Minn.App.2001). The court of appeals
concluded that Luban
was subject to the Alabama court's jurisdiction because she
made potentially
defamatory statements that were being read in Alabama and
had knowledge of the
effect of those statements in Alabama. Id. Luban sought and
was granted review in
this court.
The question presented is whether the Ramsey County District
Court correctly determined that the Alabama district court
had personal
jurisdiction over Luban so that the Alabama judgment is
entitled to full faith and
credit in the Minnesota courts. This court recognizes the
right of a defendant to
contest an action brought on the basis of a foreign court's
judgment by
demonstrating that the foreign court rendered the judgment
in the absence of
personal jurisdiction over the defendant. David M. Rice,
Inc. v. Intrex, Inc., 257
N.W.2d 370, 372 (Minn.1977). Such judgments are not entitled
to full faith and
credit in Minnesota. Uniform Enforcement of Foreign
Judgments Acts, Minn.Stat.
¤ 548.27 (2000); Hutson v. Christensen, 295 Minn. 112, 117,
203 N.W.2d
535, 538 (1972). Minnesota courts will uphold a foreign
court's exercise of
personal jurisdiction over a nonresident defendant when two
requirements are met:
(1) compliance with the foreign state's law providing
jurisdiction, and (2) the
exercise of jurisdiction under circumstances that do not
offend the Due Process
Clause of the federal constitution. Intrex, 257 N.W.2d at
372. Whether personal
jurisdiction exists is a question of law and therefore our
review is de novo. See
V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn.1996);
see also
Matson v. Matson, 310 N.W.2d 502, 506 (Minn.1981) (applying
de novo
review to issue of whether foreign judgment entitled to full
faith and credit).
For the first requirement, Minnesota courts apply the law of the
foreign
state, as construed by that state's courts. See David M.
Rice, Inc., 257 N.W.2d at
372. Alabama law extends personal jurisdiction over
nonresident defendants to the
full extent permitted by due process. Ala. R. Civ. P.
4.2(a)(1)(B); DeSotacho,
Inc. v. Valnit Industries, Inc., 350 So.2d 447, 449-50
(Ala.1977). Because
Alabama provides jurisdiction as broad as due process will
allow, the first
requirement is subsumed by the second, and we need only
determine whether
Alabama's exercise of personal jurisdiction over Luban was
consistent with due
process.
The Due Process Clause of the Fourteenth Amendment
limits the power of a state court to exercise personal
jurisdiction over a nonresident
defendant to circumstances where the defendant has
"minimum contacts" with the
state so that "maintenance of the suit does not offend
'traditional notions of
fair play and substantial justice.' " International
Shoe Co. v. Washington, 326
U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting
Milliken v. Meyer,
311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Where
the defendant
had "continuous and systematic" contacts with the
forum state, the court can
exercise "general" jurisdiction over a nonresident
defendant for all purposes, even
for a claim that is not related to the defendant's contacts
with the forum state.
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414-16,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting Perkins v.
Benguet Consol.
Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485
(1952)). Griffis
does not contend that the Alabama courts could exercise
general jurisdiction over
Luban. Where the nonresident defendant's contacts with the
forum state are not
sufficient for general jurisdiction, the defendant may
nonetheless be subject to
"specific" jurisdiction--that is, jurisdiction
over a claim that allegedly arose out of
the defendant's contacts with the forum. Valspar Corp. v.
Lukken Color Corp.,
495 N.W.2d 408, 411 (Minn.1992). Griffis contends that Luban
had sufficient
contacts with Alabama, out of which her claims arose, to
support the Alabama
court's exercise of specific jurisdiction.
In judging minimum contacts for purposes of assessing the validity
of specific jurisdiction, a court focuses on the
"relationship among the defendant,
the forum, and the litigation." Helicopteros Nacionales
de Colombia, S.A., 466
U.S. at 414-16, 104 S.Ct. 1868 (quoting Shaffer v. Heitner,
433 U.S. 186, 204,
97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)); West American Ins.
Co. v. Westin,
Inc., 337 N.W.2d 676, 679 (Minn.1983). For the minimum
contacts requirement
to be satisfied, the defendant must have "purposefully
avail[ed]" herself of the
privilege of conducting activities within the jurisdiction.
Imo Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 259 (3d Cir.1998) (quoting and modifying
Hanson v.
Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283
(1958)). The
defendant's conduct and connections with the forum state
must be such that the
defendant "should reasonably anticipate being haled
into court there." World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct.
559, 62 L.Ed.2d
490 (1980). The Supreme Court has explained that specific
jurisdiction may be
found where the nonresident defendant has "
'purposefully directed' his activities at
residents of the forum and the litigation results from
alleged injuries that 'arise out of
or relate to' those activities." Burger King Corp. v.
Rudzewicz, 471 U.S. 462,
472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton
v. Hustler
Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d
790 (1984),
and Helicopteros Nacionales de Colombia, S.A., 466 U.S. at
414).
In asserting that the Alabama district court had personal
jurisdiction over Luban,
Griffis relies in particular, as did the courts below, on
Calder v. Jones, 465 U.S.
783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Calder the
Supreme Court
approved a test that had been employed by the California
courts in that case for
determining personal jurisdiction over nonresident
defendants who allegedly
committed an intentional tort outside the forum. Id. at 787
& n. 6, 104 S.Ct. 1482.
Rather than focusing only on the defendant's conduct within
or contacts with the
forum, the so-called "effects test" approved in
Calder allowed long-arm
jurisdiction to be based on the effects within the forum of
tortious conduct outside
the forum. Id.
Calder involved an allegedly libelous National Enquirer
article written and edited
by the defendants in Florida, but concerning the California
activities of a California
resident. Id. at 784-85, 104 S.Ct. 1482. Although the
Enquirer was
distributed nationally, it had its largest circulation in
California. Id. at 784-85, 104
S.Ct. 1482. Plaintiff was an entertainer whose profession,
the Court pointed out,
was centered in California. Id. at 788, 104 S.Ct. 1482. She
brought suit in
California against the Florida-based publication, its
distributing company, and the
reporter and editor of the article. Id. at 785-86, 104 S.Ct.
1482. The reporter and
editor moved to quash service of process for lack of
personal jurisdiction. Id. at
785-85, 104 S.Ct. 1482. Although the investigative contacts
of one defendant
with California, including a visit and several phone calls,
were alleged as a basis for
jurisdiction, the Court found it unnecessary to consider
those direct contacts with
the forum. Id. at 786-87 & n. 6, 104 S.Ct. 1482.
Instead, the Court held that
California had personal jurisdiction over the reporter and
editor because their
Florida conduct was "expressly aimed" at
California, knowing that the harmful
effects would be felt primarily there. Id. at 789, 104 S.Ct.
1482. The Court
emphasized that the alleged tort was not "mere
untargeted negligence." Id. Under
these circumstances, the Court found that defendants
"must 'reasonably anticipate
being haled into court' " in California for their
out-of-state actions. Id. at 790, 104
S.Ct. 1482 (quoting World-Wide Volkswagen Corp., 444 U.S. at
297, 100
S.Ct. 559).
Courts have come to varying conclusions about how broadly
the "effects test"
approved in Calder can be applied to find jurisdiction. The
Seventh Circuit Court
of Appeals has construed Calder very broadly, concluding
that "the state in which
the victim of a tort suffers the injury may entertain a suit
against the accused
tortfeasor." Janmark, Inc. v. Reidy, 132 F.3d 1200,
1202 (7th Cir.1997).
However, the other federal courts of appeals that have
considered the issue have
rejected this expansive view that Calder supports specific
jurisdiction in a forum
state merely because the harmful effects of an intentional
tort committed in another
jurisdiction are primarily felt in the forum. E.g., Imo
Indus., 155 F.3d at 265.
Thus, courts have consistently refused to find jurisdiction
based on Calder merely
because the plaintiff was located in the forum state and
therefore felt the effects of
the alleged intentional tortious conduct there. E.g., id.;
ESAB Group, Inc. v.
Centricut, Inc., 126 F.3d 617, 625-26 (4th Cir.1997); Far
West Capital, Inc.
v. Towne, 46 F.3d 1071, 1080 (10th Cir.1995); Southmark
Corp. v. Life
Investors Inc., 851 F.2d 763, 773 (5th Cir.1988). Instead,
the courts have
construed Calder as requiring more than mere effects in the
forum state. For
example, the Ninth Circuit reasoned that " 'something
more' " than mere effects is
needed and found that something more in the " 'express
aiming' " language of
Calder. Bancroft & Masters v. Augusta Nat'l, Inc. 223
F.3d 1082, 1087 (9th
Cir.2000) (quoting Panavision Int'l, L.P. v. Toeppen, 141
F.3d 1316, 1321
(9th Cir.1998); Calder, 465 U.S. at 789, 104 S.Ct. 1482).
But the court took a
broad view of express aiming by concluding that the
requirement is satisfied simply
by "wrongful conduct [outside the forum] individually
targeting a known forum
resident." Id.
The Eighth Circuit adopted a narrower interpretation of
Calder, stating that it was
more than "mere effects" that supported the
Supreme Court's holding. Hicklin
Eng'g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th
Cir.1992). The court found
that the Iowa court's jurisdiction did not extend over a
Michigan company that sent
allegedly defamatory letters to customers of the Iowa-based
plaintiff company. Id.
The customers to whom the letters were sent were all located
outside of Iowa. Id.
The court stated that while the defendant's statements to
the non-Iowa
customers were intended to promote the defendant's product
to the detriment of
the plaintiff's and therefore might have an adverse effect
on the Iowa plaintiff, this
effect alone was not sufficient to establish jurisdiction.
Id.
Within the spectrum of differing circuit court interpretations of
Calder, we
believe the most cogent analysis of the Calder effects test
is that of the Third
Circuit in Imo Industries. In Imo Industries, the circuit
court expressed concern
over the possible breadth of Calder, asking whether under
Calder a court can
automatically infer that an out-of-state defendant can
anticipate being haled into the
forum from the fact that the defendant knew that plaintiff
resided in the forum. 155
F.3d at 262-63. After examining how a number of other courts
construed Calder,
the Third Circuit concluded that the Calder effects test is
not satisfied by the "mere
allegation that the plaintiff feels the effect of the
defendant's conduct in the forum
because the plaintiff is located there." 155 F.3d at
263. Instead, the court stated
that Calder's holding "cannot be severed from its
facts." 155 F.3d at 261. The
court explained that in Calder the Supreme Court relied on
three principal findings
in reaching its conclusion that the California court
properly exercised jurisdiction
over the nonresident defendants, and the circuit court
incorporated those findings
into a three- prong analysis for application of the Calder
effects test. 155 F.3d at
261. The test requires the plaintiff to show that: (1) the
defendant committed an
intentional tort; (2) the plaintiff felt the brunt of the
harm caused by that tort in the
forum such that the forum state was the focal point of the
plaintiff's injury; and (3)
the defendant expressly aimed the tortious conduct at the
forum such that the
forum state was the focal point of the tortious activity.
Id. at 265-66. Significantly,
the court emphasized that to satisfy the third prong, the
plaintiff must show that "the
defendant knew that the plaintiff would suffer the brunt of
the harm caused by the
tortious conduct in the forum, and point to specific
activity indicating that the
defendant expressly aimed its tortious conduct at the
forum." Id. at 266
(emphasis added).
We, too, are cautious about applying Calder too broadly.
Although the Supreme
Court has engaged in little further discussion of Calder, in
one post-Calder
decision the Court did make it clear that foreseeability of
effects in the forum is not
itself enough to justify long-arm jurisdiction. The Court
explained:
[T]he constitutional touchstone remains whether the
defendant purposefully
established "minimum contacts" in the forum State.
International Shoe Co. v.
Washington, [326 U.S.] at 316, 66 S.Ct. 154. Although it has
been argued that
foreseeability of causing injury in another State should be
sufficient to establish
such contacts there when policy considerations so require,
the Court has
consistently held that this kind of foreseeability is not a
"sufficient benchmark" for
exercising personal jurisdiction. World-Wide Volkswagen
Corp. v. Woodson,
444 U.S., at 295, 100 S.Ct. 559. Instead, "the
foreseeability that is critical to due
process analysis ... is that the defendant's conduct and
connection with the forum
State are such that he should reasonably anticipate being
haled into court there."
Id., at 297, 100 S.Ct. 559.
Burger King Corp., 471 U.S. at 474, 105 S.Ct. 2174 (footnote
omitted). If
foreseeability of injury in the forum is not enough, it
follows that something more
than defendant's knowledge that the plaintiff is a resident
of the forum and will feel
the effects of the tortious conduct there must be necessary
to satisfy the
effects test. We conclude that something more than mere
effects in the forum state
is required, and agree with the Third Circuit that the
Supreme Court did not "carve
out a special intentional torts exception to the traditional
specific jurisdiction
analysis, so that a plaintiff could always sue in his or her
home state." Imo Indus.,
155 F.3d at 265. Broad applications of the effects test,
such as those of the
Seventh and Ninth Circuits, cast too wide a net and
incorrectly disregard the
factual underpinnings of the Court's holding in Calder. We
adopt the three-prong
analysis articulated by the Third Circuit in Imo Industries,
as it properly
synthesizes the bases of the Court's decision in Calder
without effecting an overly
broad application.
The critical question in this case turns on the third prong,
whether the
defendant expressly aimed the allegedly tortious conduct at
the forum such that the
forum was the focal point of the tortious activity.2 As noted
above, to satisfy
the third prong, the plaintiff must show that "the
defendant knew that the plaintiff
would suffer the brunt of the harm caused by the tortious
conduct in the forum, and
point to specific activity indicating that the defendant
expressly aimed its tortious
conduct at the forum." Imo Indus., 155 F.3d at 266.
Griffis argues that Luban directed the defamation at the
Alabama forum because
she targeted her messages at Griffis, whom she knew to be an
Alabama resident,
and because Luban knew that messages posted on the
sci.archaeology
newsgroup could be read anywhere in the world and in fact
were read by Griffis in
Alabama. Griffis further contends that Luban's defamatory
statements had
"deleterious effects" on Griffis's consulting
business and her professional reputation
in Alabama. The district court agreed with Griffis, stating
that Luban "never denied
that she knew Plaintiff was located in Alabama, and that her
allegedly defamatory
messages would have an 'effect' on Plaintiff's professional
career in Alabama."
While the record supports the conclusion that Luban's
statements were
intentionally directed at Griffis, whom she knew to be an
Alabama resident, we
conclude that the evidence does not demonstrate that Luban's
statements were
"expressly aimed" at the state of Alabama.3 The parties
agree that Luban
published the allegedly defamatory statements on an internet
newsgroup accessible
to the public, but nothing in the record indicates that the
statements were targeted
at the state of Alabama or at an Alabama audience beyond
Griffis herself. The
newsgroup on which Luban posted her statements was organized
around the
subjects of archeology and Egyptology, not Alabama or the
University of Alabama
academic community. According to Griffis, Luban's messages
were widely read by
her colleagues--the other amateur Egyptologists who
participated in the
sci.archaeology newsgroup. But Griffis has not presented
evidence that any other
person in Alabama read the statements. Nor has she asserted
that Alabama has a
unique relationship with the field of Egyptology, like the
close relationship between
the plaintiff's profession and the forum state that the
Supreme Court found relevant
in Calder. Therefore, even if we assume Luban's statements
were widely read by
followers of the sci.archaeology newsgroup, the readers most
likely would be
spread all around the country--maybe even around the
world--and not necessarily
in the Alabama forum. The fact that messages posted to the
newsgroup could have
been read in Alabama, just as they could have been read
anywhere in the world,
cannot suffice to establish Alabama as the focal point of
the defendant's conduct.
To support her assertion that Luban's statements affected
her professional integrity
in Alabama, Griffis relies on the message posted by a dean
at the University of
Alabama. But that message simply verified that Griffis had
taught noncredit classes
related to ancient Egypt at the University of Alabama's
Department of Special
Studies. The statement did not indicate an awareness of
Luban's statements, nor
did it indicate that Griffis's integrity or reputation had
been impugned at the
University. Significantly, the dean posted the message to
another newsgroup
because she did not have access to sci.archaeology newsgroup
on which Luban
made her postings. Griffis later copied the Dean's message
onto the
sci.archaeology newsgroup. Thus nothing in the factual
record before us indicates
that Luban's messages were read by any other person in
Alabama, or by anyone in
the academic community at the University of Alabama. Griffis
also relies on a letter
her attorney wrote to Luban threatening litigation to establish
that Luban knew her
postings would harm Griffis's consulting business in
Alabama. But the letter states
only that Luban's statements were "threatening"
Griffis's business and did not
specify any details about the business. Nor does anything in
the record establish
that Griffis's consulting business was focused in Alabama,
beyond the fact that
Griffis herself was located there.4 Unlike the
facts in Calder, where the
defamatory article was focused on California activities of a
California plaintiff
whose professional industry was centralized in California
and was carried by a
national newspaper with its highest circulation in
California, Luban did not
"expressly aim" her statements at the state of
Alabama such that Alabama was the
focal point of the tortious activity.
In sum, we conclude that the record does not demonstrate
that Luban expressly
aimed her allegedly tortious conduct at the Alabama forum so
as to satisfy the third
prong of the Imo Industries analysis. The mere fact that
Luban knew that Griffis
resided and worked in Alabama is not sufficient to extend
personal jurisdiction
over Luban in Alabama, because that knowledge does not
demonstrate targeting
of Alabama as the focal point of the allegedly defamatory statements.
As a result,
even if Luban knew or should have known that defamatory
statements about
Griffis would affect her in her home state of Alabama, that
alone is not
enough to demonstrate that Alabama was the focal point of
Luban's tortious
conduct. Failing this, Griffis cannot rely on Calder to
confer personal jurisdiction
based on Luban's allegedly intentional tortious conduct.
Because Griffis does not
claim any other basis on which the Alabama court could
properly extend personal
jurisdiction over Luban, the judgment of the Alabama court
is not entitled to full
faith and credit in Minnesota. The decisions of the courts
below enforcing the
Alabama judgment are therefore reversed, and the Alabama
judgment filed in
Ramsey County District Court on May 5, 1998, under the
Uniform Enforcement
of Foreign Judgments Acts, Minn.Stat. ¤ 548.27, and the
Ramsey County District
Court judgment entered on December 21, 2000, based on the
Alabama judgment,
are vacated.
Reversed and judgments vacated.
GILBERT, J., took no part in the consideration or decision
of this case.
1. The injunction prohibited Luban from publishing in any form--
including on the internet, world
wide web and e-mail--statements
asserting or implying that Griffis
is a liar, a phony, a con-artist or
scam artist, that she has falsified
her credentials as an Egyptologist,
that she is not affiliated with the
University of Alabama, that she does
not have a juris doctor degree, and
that she is not engaged in a
legitimate consulting business.
2. Because all three prongs must be satisfied for
jurisdiction to
attach, we need address the other
two prongs only if this requirement
is met.
3. Luban concedes that she knew Griffis lived in Alabama. But
this fact alone is insufficient to
conclude that Luban expressly aimed
her allegedly tortious conduct at
the Alabama forum. We look to the
record for other evidence that the
Alabama forum was the focal point
of the defamatory statements. The
record contains only two
messages posted by Luban on the
sci.archaeology newsgroup that
identify the Alabama forum in any
way. In one, Luban stated Griffis
was "from the great state of
Alabama." In another, in response to a
message by Griffis signed
University of Alabama at Birmingham,
Special Studies, Luban asked:
"What are special studies and what
have you to do with them." In
response, Griffis posted, "Now for the
record, I am an instructor with the
University
of Alabama at Birmingham,
Department of Special Studies, and have
been for over 17 years." Luban
also acknowledges that she made
one phone call to the University of
Alabama, in which she asked a
receptionist whether Griffis was
employed there.
4. In fact, a copy of the website of the consulting business in
the
district court record identifies
Griffis Consulting as "a U.S.-based
consulting firm ... involved in
both domestic and international
services to business, government,
and other organizations." There is
no mention of Alabama on the
website, other than an ad from the
hosting site.