The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The California Court of Appeal, in a nicely-reasoned opinion in Burdick v Superior Court, recently held that posting allegedly defamatory statements about a person on a Facebook page, even while knowing that person resides in the forum state [California, in this case], is insufficient in itself to create the minimum contacts necessary to support specific personal jurisdiction in a lawsuit arising out of that posting.
The facts were as follows. Defendants operate a number of Texas companies in the skin care market, all of which distribute skin care products containing "NeriumAD," an extract of the nerium oleander plant. Burdick—the movant in the case—is a consultant for the Nerium companies; he resides in Illinois. Plaintiffs are "physician-scientists and entrepreneurs" residing in California, who operate a blog site at BareFacedTruth.com, which focuses on "science and skin care." They were highly critical of the efficacy of NeriumAD in their blog postings, and Nerium engaged in something like a coordinated campaign to discredit them and their postings. Among other things, a message appeared on the Nerium home page, asserting that one of the scientist-bloggers had "multiple domestic violence issues." For his part, Burdick, "as his part of the campaign of harassment . . . posted on his Facebook page an announcement that 'more scandalous information would be revealed' about one of the scientist-bloggers, including 'new information on why he uses multiple social security numbers' and 'how many times he has been charged with domestic violence.'"
Plaintiffs sued for libel and other torts, and Burdick moved to dismiss on the grounds that the CA court could not assert personal jurisdiction over him. The lower court held for the plaintiffs, under the "effects test" of Calder v. Jones, 465 U.S. 783. but the Court of Appeals disagreed and reversed.
It's another small nail into what I hope is the coffin of Calder, my least-favorite Supreme Court case of all time. [OK, maybe Dred Scott, or Korematsu, or Plessy v Ferguson, have pride of place in the least-favorite category—perhaps I should qualify that to say that Calder is my least-favorite SCOTUS case that non-lawyers have never heard of . . . ] In Calder, as the Court here summarized it,
Shirley Jones, a well-known actress living in California, brought a libel suit in California against a reporter and an editor for an allegedly defamatory article published in the National Enquirer, a national weekly publication with a circulation of about 600,000 in California. Both the reporter and the editor worked for the National Enquirer at its headquarters in Florida. The reporter and the editor moved to quash service of process on the ground neither had sufficient minimum contacts with California. The United States Supreme Court held that jurisdiction over the reporter and the editor in California was proper "based on the 'effects' of their Florida conduct in California."
Those effects were felt in California because, the court explained, "[t]he allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California." "In sum," the court concluded, "California is the focal point both of the story and of the harm suffered." The court noted too the intentional acts of the reporter and the editor "were expressly aimed at California" in that they wrote or edited an article "they knew would have a potentially devastating impact upon respondent" and "knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation."
The Calder "effects test" has wreaked all sorts of jurisdictional mischief, and is—slowly—dying a protracted death-by-narrowing in the lower courts, this CA case being yet another illustration. That's good news. To those (like me, and like the Supreme Court in many other cases) who believe that a court's personal jurisdiction over defendants is ultimately premised on the notion that the defendant "purposefully availed itself" of the "benefits and protections of the forum's laws"—that is, that the defendant's actions make it reasonable to imply its/his/her consent to the exercise of the forum court's power—the Calder doctrine was anathema; it allows courts to exercise jurisdiction over a defendant based upon the activities of the plaintiff (i.e., on where the plaintiff resides and where, therefore, the brunt of the harm may be felt). It is, moreover, a wildly inappropriate doctrine for the Internet Age; if you're subject to jurisdiction where the "effects" of your actions or communications are felt, then given that the "effects" of communications over the Internet can plausibly be felt everywhere and anywhere, simultaneously and instantaneously, the Calder doctrine has the potential to nullify any and all limits on personal jurisdiction and subject everyone to jurisdiction everywhere—not a reasonable outcome.
Fortunately, lower courts around the country have started to recognize this (see the citations in the Burdick opinion for support), and Calder—which has not been overruled—now has a much more limited meaning than it used to have. It's a wonderful illustration of Post's Second Law of Judicial Decision-Making**: that court opinions don't mean what they say they mean, they mean what other courts later on say they mean. It is not enough—no matter what the Calder opinion itself says—that the defendant acts intentionally, with knowledge that the plaintiffs reside in X and that the brunt of the harm will be felt in X:
Instead, it is necessary that the nonresident defendant not only intentionally post the statements on the Facebook page, but that the defendant expressly aim or specifically direct his or her intentional conduct at the forum, rather than at a plaintiff who lives there. We emphasize the exercise of personal jurisdiction must be based upon forum-related acts that were personally committed by the nonresident defendant, not upon the plaintiff's contacts with the forum or acts committed by codefendants or third parties. [Emphasis added]
So even if Burdick knew (for certain) that the information he was posting would find its way into California, and that the scientist-bloggers lived in California, and that the harm flowing from his allegedly intentional tort would therefore be felt in California, that's not sufficient—there has to be some evidence that he was specifically aimed at California, not just at people who reside in California. Some sort of indication, in other words—advertising on the Facebook page directed at California residents, for example, or something to show that the information was specifically targeted to the California, for jurisdiction to be appropriate.
That has to be the right answer, or we lose the limits on personal jurisdiction—a key component, the Court has long held, of the notion of "due process of law"—entirely.
**Post's First Law of Judicial Decision-Making is: Nine times out of 10, when courts say that something is "clear," or "evident," or "obvious," or "beyond peradventure," the truth is actually just the opposite, and whatever it is they're talking about is actually not at all clear or evident or obvious or beyond peradventure at all, but is in fact just the opposite (though the court hopes that its use of the rhetorical devices of "certainty" will obscure that fact.