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Sixth Circuit Serial Personal Jurisdiction Litigant Kathy Griffin Makes More Precedent
If you want to sue someone, you have to do it in a court that has "personal jurisdiction" over that person; that, courts have held, is required by the Due Process Clause. One way to make sure of this is to sue where the defendant lives (to oversimplify in some measure). But you can also sue in jurisdictions with which the defendant has "case-related contacts," for instance where the underlying tort has been committed.
In libel cases, where speech from one state often causes harm in another, the matter gets extra complicated. Here's an illustration from Johnson v. Griffin, decided Tuesday by the Sixth Circuit, in an opinion by Chief Judge Jeffrey Sutton, joined by Judges Guy Cole and Amul Thapar:
Kathy Griffin, a California-based celebrity and social activist, sent a series of tweets to her two million Twitter followers asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct. She encouraged her followers to make him "online famous" and tagged his company. She then asked his employer to "remove[]" him from the Board of Directors and threatened that the "nation w[ould] remain vigilant" if it did not. Within a day of her first tweets, the company fired Johnson and removed him from the Board.
Johnson and his wife sued Griffin in federal court in Tennessee, claiming (among other things) that she tortiously interfered with his employment. Griffin argued that her tweets did not subject her to the State's personal jurisdiction, and the district court dismissed the case. We disagree and reverse….
Two cases "bookend" [the] application of personal jurisdiction to intentional torts. The first, Calder v. Jones, establishes that the effects of intentional torts sometimes may establish personal jurisdiction. In that case, a California actress sued Florida journalists in California for publishing a libelous article. The Supreme Court permitted the California court to exercise personal jurisdiction over the journalists, observing that they had engaged in intentional conduct "expressly aimed at California," not "untargeted negligence." They consulted "California sources" for the article whose "focal point" concerned California. And they knew that the actress would experience the brunt of the injury in California, where the magazine had its largest circulation and where she lived and worked.
The second case, Walden v. Fiore, identifies the other side of the line. In Walden, professional gamblers from Nevada sued an officer for seizing their cash at a Georgia airport. Although the officer had formed "contacts with [the gamblers]," whom he knew lived in Nevada, he had "no jurisdictionally relevant contacts with Nevada." The officer had never traveled to the State, let alone conducted activities in or contacted anyone there. His alleged torts against the Nevada residents occurred in Georgia, not Nevada. Only Georgia had personal jurisdiction over him.
Griffin's actions have more parallels to Calder than to Walden. As in Calder, the allegedly tortious "story concerned the [Tennessee] activities of a [Tennessee] resident. It impugned the professionalism of [an executive] whose [] career was centered in [Tennessee]." And the tweet "was drawn from [Tennessee] sources." Griffin intended that the "brunt of the harm" would befall Johnson in Tennessee when she urged her followers to pressure VisuWell, a Tennessee-based company, to fire him and urged VisuWell to remove him from the Board.
Griffin's repeated emphasis of Johnson's residence in Franklin and the company's home base in Nashville hammers that home. She "undoubtedly knew" that the "focal point" of her tweets concerned Tennessee. Confirming the point, Griffin's initial tweet "cop[ied] VisuWell directly" at the same time that she threatened Johnson and identified him as based in Tennessee—indeed more specific than that, as she told people his wife's name and that they lived in Franklin, a suburb of Nashville. Following VisuWell's tweet that it had fired Johnson, Griffin inquired whether it had removed Johnson from its Board, cautioning that "the nation will remain vigilant" if it had not. These intentional threats to VisuWell's Tennessee-based business plainly affected Tennessee. And they had real world consequences for Tennessee: Johnson not only lost his livelihood, but VisuWell also lost its leader and likely customers.
Griffin counters that Blessing v. Chandrasekhar (6th Cir. 2021) leads to a different conclusion. The case has many parallels to this one, most notably a lawsuit arising from the Twitter activity of Kathy Griffin.
But to us, Blessing captures the other side of the line. In that instance, Griffin posted about an "incident" involving Kentucky students on a trip to Washington, D.C. Her tweets encouraged followers to "[n]ame these kids," "[s]hame them," and "let [their school] know how you feel about their students['] behavior." We concluded that Griffin's actions did not satisfy Kentucky's long-arm statute, then added that personal jurisdiction would not have satisfied due process even if they had. We reasoned that these tweets, all targeting actions in Washington, D.C., resembled Walden more than Calder because Griffin never took any "affirmative steps" to communicate with individuals in Kentucky when she tweeted about the student's conduct. And the students felt the tweets' harm "wherever [they] happened to be located," not just in Kentucky.
Missing in Blessing were allegations that Griffin had intentionally targeted Kentucky when provoking efforts to harass the students. The Johnsons' complaint, in marked contrast, focuses on Griffin's conduct that targeted Tennessee. In Blessing, Griffin never communicated with the Kentucky school. Here, Griffin directly communicated with VisuWell in her first tweet and, after that tweet prompted his firing, she followed up directly with VisuWell to urge it to dismiss Johnson from its Board of Directors, all while promising more harassment if the Tennessee company did not bow to her wishes. Unlike Griffin's tweets that affected Kentucky after its students returned home, her contacts with VisuWell went beyond targeting the Johnsons to affecting "the state" and indeed its "economy," "more broadly." While Griffin's tweets in Blessing arose from conduct in Washington, these tweets drew on a Tennessee source—the boyfriend's video—to attack a Tennessee resident for his conduct in Tennessee….
What of the reality that, by tagging VisuWell, she also facilitated her broader communication efforts? The tagging, in other words, did two things: It directly communicated with the company's decisionmakers about firing Johnson, and it facilitated her speech by simplifying the process of allowing her followers to chime in about Johnson's conduct. Calder tells us not to factor in First Amendment defenses in resolving a personal jurisdiction defense. That means that when the same act has two consequences—one creating jurisdiction, the other facilitating speech—the First Amendment has nothing to do with the jurisdictional inquiry.
Judge Cole concurred but added:
To be clear, purposeful availment is satisfied here because of Griffin's direct communications with VisuWell about Johnson's employment, but the ever-changing mechanics of social media platforms might make this inquiry in other cases more difficult. Imagine, for example, if Griffin's first retweet of the video clip were the exact same but for tagging or referencing VisuWell by name, instead reading: "If this is Sam Johnson in Nashville, Tennessee, the CEO of [a] healthcare-tech-growth [company] … it seems like he's dying to be online famous." Excluding the VisuWell tag is only a minor, nine-character deviation from the original tweet, but—without the tag—the tweet would no longer be a direct communication with VisuWell by Twitter's specifications. Indeed, some other user would most likely have to bring the tweet to VisuWell's attention, and this "third party['s]" contact with VisuWell may not satisfy the purposeful availment requirement.
Whether Griffin intended to create contacts with the forum state would be much less clear when analyzing the edited tweet. To solve this problem, we would need to further scrutinize the record as to whether Griffin's post was (a) "passive" activity on the internet meant to facilitate her broader advocacy efforts by condemning problematic behavior, or instead, (b) deliberately directed into Tennessee with the intent to cause consequence there.
The court didn't opine on the substantive questions, which will be considered on remand by the district court.
Todd V. McMurtry (Hemmer DeFrank Wessels, PLLC) argued the case for Johnson; Todd v. McMurtry and J. Will Huber (Hemmer DeFrank Wessels, PLLC) and Lyndsay C. Smith, (Smith, PLC) were also on the brief.
