The Volokh Conspiracy
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Some Good News for Alec Baldwin, Here in a Libel Case
From today's opinion by Judge Nancy Freudenthal (D. Wyo.) in McCollum v. Baldwin:
This case arises from opinions expressed by Defendant [Alec] Baldwin through social media posts and private messages concerning Plaintiff Roice McCollum's attendance at the Washington, D.C. events on January 6, 2021. Plaintiffs ("the McCollums") allege Mr. Baldwin's opinions resulted in hateful messages and threats by third parties toward them, and they bring this action alleging various causes of action…. The Court finds and concludes that the McCollums have failed to meet their burden of proof in showing that this Court may properly exercise personal jurisdiction over Mr. Baldwin….
Focusing just on the allegations from the complaint which go toward the personal jurisdiction analysis, on January 3, 2022, Roice McCollum (who resides in Wyoming) posted on her Instagram feed a photograph of people surrounding the Washington Monument at the "Make America Great Again" protest in Washington. Roice McCollum had attended the Washington D.C. protest. Mr. Baldwin (from New York) commented on Roice's post by saying, "Are you the same woman that I sent the $ to for your sister's husband who was killed during the Afghanistan exit." {Jiennah McCollum's husband Rylee died in Afghanistan while on active duty as a marine. A GoFundMe account was started on behalf of Jiennah and her soon-to-be-born daughter.} The private Instagram messages between Mr. Baldwin and Roice McCollum on January 3, 2022 are as follows:
Baldwin: When I sent you the $ for your late brother, out of real respect for his service to our country, I didn't know you were a January 6th rioter
Roice: Protesting is perfectly legal in the country and I've already had my sit down with the fbi. Thanks, have a nice day!
Baldwin: I don't think so.
Your brother fought for this country bravely and honestly
Your activities resulted in the unlawful destruction of government property, the death of a law enforcement officer, an assault on the certification of the presidential election.
I reposted your photo
Good luck
Mr. Baldwin posted on his own Instagram feed his views on "the attack on the Capitol" and talked about the money he sent to Roice McCollum as "a tribute to her late brother, his widow and their child." His post continued with, "Then I find this. Truth is stranger than fiction." Following this comment, Mr. Baldwin apparently re-posted the photograph originally posted by Roice McCollum on her Instagram feed.
When Roice McCollum asked Mr. Baldwin about his public post, he responded saying, "There are hateful things posted toward you that are wrong. Irony was my point. The irony of sincerely wanting to honor your brother and the fact that you are an insurrectionist. Irony: 'the use of words that mean the opposite of what you really think especially in order to be funny' (Merriam Webster)." Roice McCollum then apparently copied some very hateful posts she received, and said to Mr. Baldwin, "Thanks for the follow Alec." Again, Mr. Baldwin responded by saying, "I find that abhorrent. My feelings were expressed by my gesture on behalf of your brother." …
"Specific [personal] jurisdiction exists where a defendant does not have continuous contacts with the forum state, but the plaintiff shows that 1) the defendant has purposefully directed its activities at residents of the forum state and 2) the plaintiff's alleged injuries 'arise out of or relate to' those activities." The Tenth Circuit has distilled these principles into a three- part test: whether the defendant took "(1) an intentional action; (2) expressly aimed at the forum state; and (3) with knowledge that the brunt of the injury would be felt in the forum state."
The only factual allegations relating to Mr. Baldwin's intentional actions are the few private Instagram messages he sent to Roice McCollum, and the post on his own Instagram feed (which re-posted her public Instagram post/photo). Mr. Baldwin's public post on his own Instagram feed cannot reasonably be considered expressly aimed at Wyoming given Mr. Baldwin's "2.4 million Instagram followers." Further, the allegations that Mr. Baldwin was aware that his followers are sympathetic to his political affiliation, that they are more likely to be politically active and opinionated, that he fueled the firestorm of hatred from his followers, and did nothing to remedy what he had started, also are not intentional actions by Mr. Baldwin that were expressly aimed at Wyoming.
In short, the well-established principles of personal jurisdiction are determinative in this case. A few Internet communications from Mr. Baldwin in New York to Roice McCollum in Wyoming are insufficient to establish that he expressly aimed any allegedly tortious conduct at Wyoming. See, e.g., Rockwood Select Asset Fund XI (6)-1, LLC v. Devine Millimet & Branch (10th Cir. 2014). Or as the Supreme Court stated more succinctly, "it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State." Walden v. Fiore (2014). The entirety of Mr. Baldwin's relevant conduct occurred in New York through the use of Instagram, an Internet-based social networking service ….
Further, the fact that Mr. Baldwin placed content on his own Instagram feed from New York – that his 2.4 million followers could access world-wide – also does not subject Mr. Baldwin to jurisdiction in Wyoming.
Following the instructions given by the Tenth Circuit, this Court must examine whether the defendant "deliberately directed [his] message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state.'" That did not occur here, and neither Mr. Baldwin's wealth, fame or number of followers changes the analysis.
Also, the McCollum's argument that "Baldwin cannot simply pick a fight in Wyoming and scurry back to his Manhattan penthouse claiming he is immune from the consequences of his action in Wyoming" is entirely unpersuasive. Mr. Baldwin was never in Wyoming to "pick a fight" and did not "scurry back" as he never left New York. Mr. Baldwin is not "immune" from the consequences of any tort simply because of this Court's determination that it lacks personal jurisdiction. However, the allegedly tortious conduct by Mr. Baldwin in New York, by way of posting a photo and content on his own Instagram feed, was not deliberately directed at an audience in Wyoming, thus any allegation that it was intended to harm plaintiffs primarily or particularly in Wyoming is insufficient for personal jurisdiction….
