United States District Court,
District of Columbia.
Sidney BLUMENTHAL and Jacqueline Jordan Blumenthal, Plaintiffs,
v.
Matt DRUDGE and America Online, Inc., Defendants.
No. CIV.A. 97-1968 PLF.
April 22, 1998.
White House employees brought defamation action against electronically-published gossip columnist and interactive computer service provider. Service provider moved for summary judgment and columnist moved to dismiss or transfer for lack of personal jurisdiction. The District Court, Paul L. Friedman, J., held that: (1) service provider could not be held liable for making gossip column available to its subscribers, and (2) columnist engaged in persistent course of conduct in District of Columbia which warranted exercise of personal jurisdiction.
Motion to dismiss or transfer denied, and motion for summary judgment granted.
West Headnotes
[1] Libel and Slander 
28
(Formerly 237k74)
Interactive
computer service provider could not be held liable for making allegedly
defamatory gossip column, written by another information content provider,
available to service provider's subscribers, in absence of evidence that
service provider had some role in writing or editing material or creating or
developing information in column. 47
U.S.C.A. § 230(c)(1).
[2] Federal Civil Procedure 2547.1
When party
opposing motion for summary judgment seeks to rebut facts set forth in movant's
statement of material facts by merely citing to allegations in complaint rather
than citing to evidence in record or providing evidentiary support through
affidavits or other competent evidence, those facts may be deemed admitted.
[3] Libel and Slander 74
Interactive
computer service provider was immune from defamation liability based on gossip
column, even though service provider had contracted with gossip columnist to
provide column for monthly compensation of $3000, service provider had certain
editorial rights including right to require changes in content and to remove
it, and service provider had affirmatively promoted columnist as new source of
unverified instant gossip. 47
U.S.C.A. § 230.
[4] Constitutional Law 3964
(Formerly 92k305(5))
[4] Federal
Courts 76.1
(Formerly 170Bk76)
For
district court to maintain personal jurisdiction over non-resident defendant,
jurisdiction must be proper under long-arm statute and consistent with demands
of due process.
[5] Federal
Courts 96
Plaintiffs
have burden of establishing that district court has personal jurisdiction over
defendant and alleging specific facts upon which personal jurisdiction may be
based.
[6] Constitutional Law 3964
(Formerly 92k305(5))
[6] Federal
Courts 1041
To
establish personal jurisdiction under District of Columbia long-arm statute's
provision for tortious injury resulting from act outside District of Columbia,
plaintiff must make prima facie showing that (1) plaintiff suffered tortious
injury in District, (2) injury was caused by defendant's act or omission
outside of District, and (3) defendants had one of three enumerated contacts
with District; plaintiff must satisfy all three requirements and establish
minimum contacts within confines of due process. U.S.C.A. Const.Amends.
5, 14; D.C.Code
1981, § 13-423(a)(4).
[7] Federal Courts 1037
(Formerly 170Bk76.25)
Internet
gossip columnist, who wrote, published, and transmitted from computer in
California column that allegedly defamed District of Columbia residents,
engaged in persistent course of conduct in District sufficient to warrant
exercise of personal jurisdiction under long-arm statute, in light of
interactivity of web site, which particularly focused on District gossip,
regular electronic distribution of column to District residents, solicitation
and receipt of contributions from District residents, columnist's interview
with television station in District, and columnist's contacts with District
residents to collect gossip. D.C.Code
1981, § 13-423(a)(4).
[8] Federal Courts 1037
(Formerly 170Bk76.25)
Purveyor
of gossip was not entitled to benefit from "news gathering exception"
to District of Columbia's long-arm statute
for tortious injury inside District resulting from act outside District. D.C.Code
1981, § 13-423(a)(4).
[9] Constitutional Law 3965(1)
(Formerly 92k305(5))
To satisfy
jurisdictional due process minimum contacts test in Internet context, there
must be something more than Internet advertisement alone to indicate that
defendant purposefully, albeit electronically, directed his activity in
substantial way to the forum state, such that he should reasonably anticipate
being haled into court there.
[10] Constitutional Law 3964
(Formerly 92k305(5))
[10] Federal
Courts 1037
(Formerly 170Bk76.25)
Because District of Columbia's tortious
acts provision of long-arm statute did not reach outer limits of due process
and district court had concluded that there were sufficient "plus
factors" to meet statutory requisites, it followed that there were also
sufficient minimum contacts to satisfy due process. D.C.Code
1981, § 13-423(a)(4).
*46
William Alden McDaniel, Jr., McDaniel &
Marsh, Baltimore, MD, for Plaintiffs.
Jonathan
Walker Emord, Emord & Assoc., P.C.,
Washington, DC, for Matt Drudge.
Patrick
Joseph Carome, John
Adolphus Payton, Jr., Wilmer, Cutler &
Pickering, Washington, DC, for America Online, Inc.
OPINION
PAUL
L. FRIEDMAN, District Judge.
This is a defamation case revolving around a
statement published on the Internet by defendant Matt Drudge. On August 10, 1997, the following was
available to all having access to the Internet:
The DRUDGE REPORT has learned that top GOP operatives who
feel there is a double-standard of only reporting republican shame believe they
are holding an ace card: New White House
recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up.
The accusations are explosive.
There are court records of Blumenthal's violence against
his wife, one influential republican, who demanded anonymity, tells the DRUDGE
REPORT.
If they begin to use [Don] Sipple and his problems against
us, against the Republican Party ... to show hypocrisy, Blumenthal would become
fair game. Wasn't it Clinton who signed the Violence Against Women Act?
[There goes the budget deal honeymoon.]
One White House source, also requesting anonymity, says the
Blumenthal wife-beating allegation is a pure fiction that has been created by
Clinton enemies. [The First Lady] would
not have brought him in if he had this in his background, assures the
wellplaced staffer. This story about
Blumenthal has been in circulation for years.
Last month President Clinton named Sidney Blumenthal an
Assistant to the President as part of the Communications Team. He's brought in
to work on communications strategy, special projects themeing--a newly created
position.
Every attempt to reach Blumenthal proved unsuccessful.
Complaint, Ex. 4.
Currently before this Court are a motion for
summary judgment filed by defendant America Online, Inc. ("AOL") and
a motion to dismiss or transfer for lack of personal jurisdiction filed by
defendant Matt Drudge. Upon consideration of the papers filed by the parties
and the oral arguments of counsel, the Court concludes that AOL's motion should
be granted and Drudge's motion should be denied.
I. BACKGROUND
Plaintiffs Sidney Blumenthal and Jacqueline
Jordan Blumenthal are citizens of the District of Columbia and have
continuously lived in the District since 1985.
Complaint ¶ ¶ 1-2, 12. Sidney Blumenthal works in the White House
as an Assistant to the President of the United States. His first day of work as Assistant to the
President was Monday, August 11, 1997, the day after the publication of the
alleged defamatory statement.
Jacqueline Jordan Blumenthal, Sidney Blumenthal's wife, also works in
the White House as Director of the President's Commission On White House
Fellowships. Complaint ¶ ¶ 13, 16-17.
Defendant Matt Drudge, a Takoma Park, Maryland
native, is a resident of the State of California, where he has lived
continuously since 1987. Complaint, Ex.
8; Drudge Motion to Dismiss
("Drudge Motion"), Declaration *47 of Matt Drudge
("Drudge Decl. I") ¶ 2. [FN1] In early 1995,
defendant Drudge created an electronic publication called the Drudge Report, a
gossip column focusing on gossip from Hollywood and Washington, D.C. Transcript
of March 11, 1998 Motions Hearing ("Hearing Tr.") at 41. Mr. Drudge's base of operations for writing,
publishing and disseminating the Drudge Report has been an office in his apartment in Los Angeles, California. Drudge Decl. I ¶ ¶ 2-4.
FN1. Takoma Park,
Maryland is a suburb of the District of Columbia.
Access to defendant Drudge's world wide web
site is available at no cost to anyone who has access to the Internet at the
Internet address of "www.drudgereport.com." Drudge Decl. I ¶ 9. The front page of the web site contains
the logo "Drudge Report."
Defendant Drudge has also placed a hyperlink on his web site that, when
activated, causes the most recently published edition of the Drudge Report to
be displayed. Id. [FN2] The web site
also contains numerous hyperlinks to other on-line news publications and news
articles that may be of interest to readers of the Drudge Report. Id. In
addition, during the time period relevant to this case, Drudge had developed a
list of regular readers or subscribers to whom he e-mailed each new edition of
the Drudge Report. Drudge Decl. I ¶
¶ 6-7. By March 1995, the Drudge Report had 1,000
e-mail subscribers, Drudge Decl. I ¶
8; and plaintiffs allege that by
1997 Drudge had 85,000 subscribers to his e-mail service. Complaint ¶ 47.
FN2. Through a
"hyperlink," a browser may connect to another web site by clicking on
the specially highlighted text or images on the initial web site.
After clicking on the highlighted text, the browser is then directly
taken to that particular web site.
Complaint ¶ 35.
In late 1996, defendant Drudge entered into a
six-month licensing agreement with the publisher of "Wired"
magazine. Under the agreement, the
publisher of "Wired" had the right to receive and display future
editions of the Drudge Report in "Hotwired," a new electronic
Internet publication. In exchange,
defendant Drudge received a bi-weekly royalty payment. In addition to the publication of the Drudge
Report in "Hotwired," defendant Drudge continued to distribute each
new edition via e-mail to his subscribers and via his world wide web site. Drudge Decl. I ¶ ¶ 11-12.
In late May or early June of 1997, at
approximately the time when the "Wired" licensing agreement expired,
defendant Drudge entered into a written license agreement with AOL. [FN3] The agreement
made the Drudge Report available to all members of AOL's service for a period
of one year. In exchange, defendant
Drudge received a flat monthly "royalty payment" of $3,000 from AOL.
During the time relevant to this case, defendant Drudge has had no other source
of income. Drudge Decl. I ¶ ¶ 13-14.
Under the licensing agreement, Drudge is to create, edit, update and
"otherwise manage" the content of the Drudge Report, and AOL may
"remove content that AOL reasonably determine[s] to violate AOL's then
standard terms of service." AOL
Mem. at 7; see Exhibit C to Licensing Agreement ¶ I, Ex. A to Jennings Decl. Drudge transmits
new editions of the Drudge Report by e-mailing them to AOL. AOL then posts the
new editions on the AOL service. AOL
Mem., Declaration of Matt Drudge ("Drudge Decl. II") ¶ 17;
AOL Mem. at 9. Drudge also has continued to distribute each new edition
of the Drudge Report via e-mail and his own web site. Drudge Decl. I ¶ 16; Hearing Tr. at 41-42.
FN3. According to
AOL, it operates "the world's largest interactive computer service. AOL's more than nine million subscribers use
the AOL service as a conduit to receive and disseminate vast quantities of
information by means of modern connections to AOL's computer network."
Memorandum of Points and Authorities in Support of Defendant America Online,
Inc.'s Motion for Summary Judgment ("AOL Mem.") at 3; see Declaration of Robert Jennings
("Jennings Decl.") ¶ 4,
Exhibit 1 to AOL Mem.
Late at night on the evening of Sunday, August
10, 1997 (Pacific Daylight Time), defendant Drudge wrote and transmitted the
edition of the Drudge Report that contained the alleged defamatory statement
about the Blumenthals. Drudge
transmitted the report from Los Angeles, California by e-mail to his direct
subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. He then *48 transmitted the text but
not the headline to AOL, which in turn made it available to AOL subscribers.
Drudge Decl. I ¶ ¶ 15, 16, 19. [FN4]
FN4. The headline
read: "Charge: New White House Recruit Sidney Blumenthal Has
Spousal Abuse Past." Complaint, Ex. 2.
After receiving a letter from plaintiffs'
counsel on Monday, August 11, 1997, Complaint, Ex. 6, defendant Drudge
retracted the story through a special edition of the Drudge Report posted on
his web site and e-mailed to his subscribers.
Drudge Decl. I ¶ ¶ 17-19. At approximately 2:00 a.m. on Tuesday,
August 12, 1997, Drudge e-mailed the retraction to AOL which posted it on the
AOL service. Drudge Decl. I ¶ 19;
AOL Mem. at 12. [FN5] Defendant Drudge
later publicly apologized to the Blumenthals.
Drudge Decl. I ¶ 20; Complaint,
Ex. 6 (Howard Kurtz, Blumenthals Get Apology, Plan Lawsuit: Web Site Retracts Story on Clinton Aide,
Washington Post, August 11, 1997, at A 11).
FN5. AOL later
removed the August 10 edition of the Drudge Report from the electronic archive
of previous editions of the Drudge Report available to AOL subscribers. AOL Mem. at 13.
II. AOL's MOTION FOR SUMMARY JUDGMENT
A. The Internet
"The Internet is a unique and wholly new
medium of worldwide human communication."
Reno
v. American Civil Liberties Union,
521U.S. 844, ----, 117 S.Ct. 2329, 2334, 138 L.Ed.2d 874 (1997). [FN6] It enables people to communicate with one
another with unprecedented speed and efficiency and is rapidly revolutionizing
how people share and receive information.
As Congress recognized in the Communications Decency Act of 1996,
"the rapidly developing array of Internet and other interactive computer
services ... represent an extraordinary advance in the availability of
educational and informational resources to our citizens." 47
U.S.C. § 230(a)(1). As one court has
noted:
FN6. "The term
'Internet' means the international computer network of both Federal and
non-Federal interoperable packet switched data networks." 47
U.S.C. § 230(e)(1). The Internet is
"not a physical or tangible entity, but rather a giant network which
interconnects innumerable smaller groups of linked computer
networks." ACLU
v. Reno,
929 F.Supp. 824, 830 (E.D.Pa.1996), aff'd,
521
U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The "web" is a "vast
decentralized collection of documents containing
text, visual images, and even audio clips....
The web is designed to be inherently accessible from every Internet site
in the world." Stephen Wilske and
Teresa Schiller, International Jurisdiction In Cyberspace: Which States May Regulate The Internet?,
50 FED. COM. L.J. 117, 140 (1997).
The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the
Internet is concerned, not only is there perhaps "no there there,"
the "there" is everywhere where there is Internet access. When business is transacted over a computer
network via a Web-site accessed by a computer in Massachusetts, it takes place
as much in Massachusetts, literally or figuratively, as it does
anywhere.
Digital
Equipment Corp. v. Altavista Technology, Inc.,
960 F.Supp. 456, 462 (D.Mass.1997). [FN7]
FN7. It is probably
safe to say that more ideas and information are shared on the Internet than in
any other medium. But when we try to
pin down the location of this exchange, we realize how slippery our notion of
the Internet really is. Perhaps this is
because "cyberspace" is not a "space" at all. At least not in the way we understand
space. It's not located anywhere; it has no boundaries; you can't "go" there. At the bottom,
the Internet is really more idea than entity.
It is an agreement we have made to hook our computers together and
communicate by way of binary impulses and digitized signals sent over telephone
wires.
*
* *
Risking overstatement only slightly, the Internet
represents a brave new world of free speech.
The number of people regularly using the Internet is expected to grow to
100 million by the year 2000. Arguably,
the Internet will become as prevalent in our daily lives as the printing press,
telephone, radio, and television....
[T]he Internet is fundamentally different from traditional
forms of mass communication in at least three important respects. First, the Internet is capable of
maintaining an unlimited number of information sources, ... Second, the
Internet has no "gatekeepers"--no publishers or editors controlling
the distribution of information....
Finally, the users of Internet information are also its producers. But every person who taps into the Internet
is his [or her] own journalist. In
other words, the Internet has shifted the focus of mass communication to the
individual ... Never before has it been so easy to circulate speech among so
many people.
*
* *
John Doe can now communicate with millions of people from
the comfort, safety and privacy of his own home. His communication requires minimal investment and minimal time--once the word is
written, it is disseminated to a mass audience literally with the touch of a
button. Moreover, Internet speakers are
not restricted by the ordinary trappings of polite conversation; they tend to speak more freely online.
Bruce W. Sanford and Michael J. Lorenger, Teaching
An Old Dog New Tricks: The First
Amendment In An Online World,
28 Conn. L.Rev. 1137, 1139-43 (1996).
*49 The near instantaneous
possibilities for the dissemination of information by millions of different
information providers around the world to those with access to computers and
thus to the Internet have created ever-increasing opportunities for the
exchange of information and ideas in "cyberspace." [FN8] This information
revolution has also presented unprecedented challenges relating to rights of
privacy and reputational rights of individuals, to the control of obscene and
pornographic materials, and to competition among journalists and news
organizations for instant news, rumors and other information that is
communicated so quickly that it is too often unchecked and unverified. Needless to say, the legal rules that will
govern this new medium are just beginning to take shape.
FN8. "
'Cyberspace' refers to the interaction of people and businesses over computer networks, electronic
bulletin boards, and commercial online services. The largest and most visible manifestation
of cyberspace is the Internet...."
R. Timothy Muth, Old Doctrines On A New Frontier: Defamation and Jurisdiction In Cyberspace,
Wis. LAW. 10, 11 (Sept.1995), available in Westlaw at 68-SEP WILAW
10; see also ACLU
v. Reno,
929 F.Supp. at 830-38.
B. Communications
Decency Act of 1996,
Section 230
In February of 1996, Congress made an effort
to deal with some of these challenges in enacting the Communications Decency
Act of 1996. While various policy
options were open to the Congress, it chose to "promote the continued
development of the Internet and other interactive computer services and other
interactive media" and "to preserve the vibrant and competitive free
market" for such services, largely "unfettered by Federal or State
regulation...." 47
U.S.C. § 230(b)(1) and (2). Whether wisely or
not, it made the legislative judgment to effectively immunize providers of
interactive computer services from civil liability in tort with respect to
material disseminated by them but created by others. In recognition of the speed with which
information may be disseminated and the near impossibility of regulating
information content, Congress decided not to treat providers of interactive
computer services like other information providers such as newspapers, magazines or television and radio stations, all
of which may be held liable for publishing or distributing obscene or
defamatory material written or prepared by others. While Congress could have made a different
policy choice, it opted not to hold interactive computer services liable for
their failure to edit, withhold or restrict access to offensive material
disseminated through their medium.
Section
230(c) of the Communications Decency Act of 1996
provides:
No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by
another information content provider.
47
U.S.C. § 230(c)(1). The statute goes
on to define the term "information
content provider" as "any person or entity that is responsible, in
whole or in part, for the creation or development of information provided
through the Internet or any other interactive computer service." 47
U.S.C. § 230(e)(3). In view of this
statutory language, plaintiffs' argument that the Washington Post would
be liable if it had done what AOL did here--"publish Drudge's story
without doing anything whatsoever to edit, verify, or even read it (despite
knowing what Drudge did for a living and how he did it)," Plaintiff's
Memorandum of Points and Authorities in Opposition to Defendant America Online,
Inc.'s Motion for Summary Judgment ("Pls.' Mem.") at 1--has been
rendered irrelevant by Congress.
[1][2] Plaintiffs concede
that AOL is a "provider ... of an interactive computer service" *50
for purposes of Section
230, see Complaint ¶ 94; Pls.' Mem. at 3, and that if AOL acted
exclusively as a provider of an interactive computer service it may not be held
liable for making the Drudge Report available to AOL subscribers. See 47
U.S.C. § 230(c)(1). They also concede
that Drudge is an "information content provider" because he wrote the
alleged defamatory material about the Blumenthals contained in the Drudge
Report. Pls.' Mem. at 4. While
plaintiffs suggest that AOL is responsible along with Drudge because it had
some role in writing or editing the material in the Drudge Report, they have
provided no factual support for that assertion. Indeed, plaintiffs affirmatively state that
"no person, other than Drudge himself, edited, checked, verified, or
supervised the information that Drudge published in the Drudge
Report." Plaintiffs' Statement of
Material Facts ("Pls.' Stmt.") ¶
1(ii). It also is apparent to
the Court that there is no evidence to support the view originally taken by
plaintiffs that Drudge is or was an employee or agent of AOL, and plaintiffs
seem to have all but abandoned that argument. [FN9]
FN9. Plaintiffs'
Statement of Genuine Issues of Material Facts does not identify any evidence to
support their conclusory assertion that there are genuine issues of fact as to
whether Drudge was an employee or agent of AOL.
See Pls.' Stmt. ¶ ¶ 3-4, 12. When a party opposing a motion for summary
judgment seeks to rebut facts set forth in the movant's Statement of Material
Facts by merely citing to allegations in the complaint rather than citing to
evidence in the record or providing evidentiary support through affidavits or
other competent evidence, those facts may be deemed admitted. See Celotex
Corp. v. Catrett,
477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Twist
v. Meese,
854 F.2d 1421, 1424 (D.C.Cir.1988), cert.
denied, 490
U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989); Glovinsky
v. Cohen,
983 F.Supp. 1, 2-3 (D.D.C.1997); United
States v. BCCI Holdings (Luxemborg).
S.A.,
977 F.Supp. 1, 6 (D.D.C.1997); see also Rule
56(e), Fed.R.Civ.P. and Local Rule 108(h).
AOL acknowledges both that Section
230(c)(1) would not immunize AOL with respect to
any information AOL developed or created entirely by itself and that there are
situations in which there may be two or more information content providers
responsible for material disseminated on the Internet--joint authors, a
lyricist and a composer, for example.
Defendant America Online, Inc.'s Reply Memorandum In Further Support of
Its Motion for Summary Judgment ("AOL Reply Mem.") at 10; Hearing Tr. at 12. While Section
230 does not preclude joint liability for the
joint development of content, AOL maintains that there simply is no evidence
here that AOL had any role in creating or developing
any of the information in the Drudge Report.
The Court agrees. It is
undisputed that the Blumenthal story was written by Drudge without any
substantive or editorial involvement by AOL. Drudge Decl. II ¶ ¶ 46-47.
AOL was nothing more than a provider of an interactive computer service
on which the Drudge Report was carried, and Congress has said quite clearly
that such a provider shall not be treated as a "publisher or speaker"
and therefore may not be held liable in tort.
47
U.S.C. § 230(c)(1).
As Chief Judge Wilkinson recently wrote for
the Fourth Circuit:
By its plain language, § 230 creates a
federal immunity to any cause of action that would make service providers
liable for information originating with a third-party user of the service. Specifically, § 230 precludes
courts from entertaining claims that would place a computer service provider in
a publisher's role. Thus, lawsuits
seeking to hold a service provider liable for its exercise of a publisher's
traditional editorial functions--such as deciding whether to publish, withdraw,
postpone or alter content--are barred.
The purpose of this statutory immunity is not difficult to
discern. Congress recognized the threat
that tort-based lawsuits pose to freedom of speech in the new and burgeoning
Internet medium. The imposition of tort
liability on service providers for the communications of others represented,
for Congress, simply another form of intrusive government regulation of
speech. Section
230 was enacted, in part, to maintain the robust
nature of Internet communication and,
accordingly, to keep government interference in the medium to a minimum.
* *
* * * *
*51
None of this means, of course, that the original culpable party who posts
defamatory messages would escape accountability. While Congress acted to keep government
regulation of the Internet to a minimum, it also found it to be the policy of
the United States "to ensure vigorous enforcement of Federal criminal laws
to deter and punish trafficking in obscenity, stalking and harassment by means
of computer." Id.
§ 230(b)(5). Congress made a policy choice, however, not
to deter harmful online speech through the separate route of imposing tort
liability on companies that serve as intermediaries for other parties'
potentially injurious messages.
Zeran
v. America Online, Inc.,
129 F.3d 327, 330-31 (4th Cir.1997). The court in Zeran has provided a
complete answer to plaintiffs' primary argument, an answer grounded in the
statutory language and intent of Section
230. [FN10]
FN10. See infra
n. 13.
[3] Plaintiffs make the additional argument, however, that Section
230 of the Communications Decency Act does not
provide immunity to AOL in this case because
Drudge was not just an anonymous person who sent a message over the Internet
through AOL. He is a person with whom AOL contracted, whom AOL paid $3,000 a
month--$36,000 a year, Drudge's sole, consistent source of income--and whom AOL
promoted to its subscribers and potential subscribers as a reason to subscribe
to AOL. Pls.' Mem. at 2, 7. Furthermore, the license agreement between AOL and
Drudge by its terms contemplates more than a passive role for AOL; in it, AOL reserves the "right to
remove, or direct [Drudge] to remove, any content which, as reasonably
determined by AOL ... violates AOL's then-standard Terms of Service...." Jennings Decl. ¶ 16 (quoting Exhibit C to Licensing Agreement
¶ I, Ex. A to Jennings Decl.). By the terms of the agreement, AOL also is
"entitled to require reasonable changes to ... content, to the extent such
content will, in AOL's good faith judgment, adversely affect operations of the
AOL network." Id.
In addition, shortly after it entered into the
licensing agreement with Drudge, AOL issued a press release making clear the
kind of material Drudge would provide to AOL subscribers--gossip and rumor--and
urged potential subscribers to sign onto AOL in order to get the benefit of the
Drudge Report. The press release was captioned:
"AOL Hires Runaway Gossip Success Matt Drudge." Complaint, Ex. I. It noted that
"[m]averick gossip columnist Matt Drudge has teamed up with America
Online," and stated: "Giving
the Drudge Report a home on America Online (keyword: Drudge) opens up the floodgates to an audience ripe for Drudge's brand of
reporting.... AOL has made Matt Drudge
instantly accessible to members who crave instant gossip and news breaks."
Id. Why is this different, the Blumenthals suggest, from AOL advertising
and promoting a new purveyor of child pornography or other offensive
material? Why should AOL be permitted to
tout someone as a gossip columnist or rumor monger who will make such rumors
and gossip "instantly accessible" to AOL subscribers, and then claim
immunity when that person, as might be anticipated, defames another?
If it were writing on a clean slate, this
Court would agree with plaintiffs. AOL
has certain editorial rights with respect to the content provided by Drudge and
disseminated by AOL, including the right to require changes in content and to
remove it; and it has affirmatively
promoted Drudge as a new source of unverified instant gossip on AOL. Yet it
takes no responsibility for any damage he may cause. AOL is not a passive conduit like the
telephone company, a common carrier with no control and therefore no
responsibility for what is said over the telephone wires. [FN11] Because it has the right to exercise
editorial control over those with whom it contracts and whose words it
disseminates, it would seem only fair to hold AOL to the liability standards
applied to a publisher or, at least, like a book store owner or library, to the
liability standards applied to a distributor. [FN12] *52 But
Congress has made a different policy choice by providing immunity even where
the interactive service provider has an
active, even aggressive role in making available content prepared by
others. In some sort of tacit quid
pro quo arrangement with the service provider community, Congress has
conferred immunity from tort liability as an incentive to Internet service
providers to self-police the Internet for obscenity and other offensive
material, even where the self-policing is unsuccessful or not even attempted.
FN11. See
David J. Goldstone, A Funny Thing Happened On The Way To the Cyber
Forum: Public vs. Private in Cyberspace Speech, 69 U.
COLO. L. REV . 1, 40-48 (1998).
FN12. See
Douglas B. Luffman, Defamation
Liability For On-Line Services: The Sky
Is Not Falling,
65 GEO. WASH. L. REV. 1071, 1083-85 (1997); David R. Sheridan, Zeran v. AOL And The
Effect Of Section
230 Of The Communications Decency Act Upon
Liability for Defamation On The Internet,
61 ALB. L. REV. 147, 167-77 (1997).
In Section
230(c)(2) of the Communications Decency Act,
Congress provided:
No provider or user of an interactive computer service
shall be held liable on account of--
(A) Any action voluntarily taken in good faith to restrict
access to or availability of material that
the provider or user considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable, whether or not such
material is constitutionally protected;
or
(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access to material
described in paragraph (1).
47
U.S.C. § 230(c)(2). [FN13] As the Fourth Circuit stated in Zeran:
"Congress enacted § 230 to remove
... disincentives to self-regulation....
Fearing that the specter of liability would ... deter service providers
from blocking and screening offensive material .... § 230 forbids the
imposition of publisher liability on a service provider for the exercise of its
editorial and selfregulatory functions."
Zeran
v. America Online, Inc.,
129 F.3d at 331. [FN14]
FN13. While this
provision of the statute primarily addresses obscenity and violent material, it
also references material that is "otherwise objectionable," a broad
enough category to cover defamatory statements as well. Indeed, the legislative history makes clear
that one of the primary purposes of Section
230 was to overrule the Stratton Oakmont
decision of a New York State court that was itself a defamation case in which
Prodigy Services, an Internet computer service like AOL, was held liable as a publisher of defamatory
material. See Stratton
Oakmont, Inc. v. Prodigy Services Co.,
1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). As the Conference Report stated:
One of the specific purposes of this section is to overrule
Stratton Oakmont v. Prodigy and any other similar decisions which have
treated such providers and users as publishers or speakers of content that is
not their own because they have restricted access to objectionable
material. The conferees believe that
such decisions create serious obstacles to the important federal policy of
empowering parents to determine the content of communications their children
receive through interactive computer services.
H.R.
CONF. REP. No. 104-458, at 194 (1996).
FN14. 47
U.S.C. § 230(b)(4) provides:
It is the policy of the United States to remove
disincentives for the development and utilization of blocking and filtering
technologies that empower parents to restrict their children's access to
objectionable or inappropriate online material.
Any attempt to distinguish between
"publisher" liability and notice-based "distributor" liability and to
argue that Section
230 was only intended to immunize the former would be unavailing. Congress made no distinction between
publishers and distributors in providing immunity from liability. As the Fourth Circuit has noted: "[I]f computer service providers were
subject to distributor liability, they would face potential liability each time
they receive notice of a potentially defamatory statement--from any party,
concerning any message," and such notice-based liability "would deter
service providers from regulating the dissemination of offensive material over
their own services" by confronting them with "ceaseless choices of
suppressing controversial speech or sustaining prohibitive
liability"--exactly what Congress intended to insulate them from in Section
230. Zeran
v. America Online, Inc.,
129 F.3d at 333.
C.f.Cubby,
Inc. v. CompuServe, Inc.,
776 F.Supp. 135, 139-40 (S.D.N.Y.1991) (decided
before enactment of Communications Decency Act). While it appears to this Court that AOL in
this case has taken advantage of all *53 the benefits conferred by
Congress in the Communications Decency Act, and then some, without accepting
any of the burdens that Congress intended, the statutory language is
clear: AOL is immune from suit, and the
Court therefore must grant its motion for summary judgment. [FN15]
FN15. With respect
to the portions of AOL's motion for summary judgment that do not depend on Section
230, plaintiffs have made no attempt to refute AOL's showing that it cannot
be liable for Drudge's alleged oral statements to the press, which are the
subject of Counts 9 through 20 of their complaint, because AOL had no role
whatsoever in the formulation or dissemination of those statements and Drudge
did not act on AOL's behalf in allegedly making them. See AOL Mem. at 41-42. Plaintiffs'
only response to AOL on these points was a suggestion that they would like to
take discovery. But plaintiffs have
failed to make even the rudimentary showing required by Rule
56(f) of the Federal Rules of Civil Procedure
that, without discovery, they are unable to "present by affidavit facts
essential to justify [their] opposition [to summary judgment]." See Rule
56(f), Fed.R.Civ.P.; see also First
Chicago Int'l v. United Exchange Co., Ltd.,
836 F.2d 1375, 1380-81 (D.C.Cir.1988); Novecon,
Ltd. v. Bulgarian-American Enterprise Fund,
977 F.Supp. 52, 54 (D.D.C.1997).
Plaintiffs have also effectively conceded that AOL is entitled
to summary judgment with respect to the first four counts of the complaint,
which relate solely to an allegedly defamatory headline that appeared on
Drudge's own web site but did not appear on the AOL service. See AOL Mem. at 17 n. 11; Statement of Material Facts As To Which
Defendant America Online, Inc. Contends There Is No Genuine Issue ("AOL
Facts") ¶ 72. See supra
at ----and n. 4.
III. DRUDGE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
[4][5] Defendant Drudge has moved, pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure,
for an order dismissing this action for lack of personal jurisdiction or,
alternatively, to transfer it to the United States District Court for the
Central District of California. In
order for this Court to maintain personal jurisdiction over a non-resident
defendant, jurisdiction must be proper under the District of Columbia long-arm
statute and consistent with the demands of due process. United
States v. Ferrara,
54 F.3d 825, 828 (D.C.Cir.1995); Crane
v. Carr,
814 F.2d 758, 762 (D.C.Cir.1987). Plaintiffs have the burden of establishing
that this Court has personal jurisdiction over defendant Drudge and alleging
specific facts upon which personal jurisdiction may be based. See Cellutech
Inc. v. Centennial Cellular Corp.,
871 F.Supp. 46, 48 (D.D.C.1994).
A. D.C. Long-Arm Statute
[6] The only provision of the District of Columbia long-arm
statute that is relevant to this case is Section
13-423(a)(4), which provides:
A District of Columbia court may exercise personal
jurisdiction over a person, who acts directly or by an agent, as to a claim for
relief arising from the person's ... causing tortious injury in the District of
Columbia by an act or omission outside the District of Columbia if he regularly
does or solicits business, engages in any
other persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered, in the District of Columbia.
D.C.Code
§ 13-423(a)(4). In order to
establish personal jurisdiction under this provision a plaintiff must make a prima
facie showing that (1) plaintiff suffered a tortious injury in the District
of Columbia; (2) the injury was caused
by the defendant's act or omission outside of the District of Columbia; and (3) defendants had one of three
enumerated contacts with the District of Columbia. Trager
v. Berrie,
593 F.Supp. 223, 225 (D.D.C.1984); Akbar
v. New York Magazine Co.,
490 F.Supp. 60, 63 (D.D.C.1980). Plaintiffs must satisfy all three
requirements and also establish minimum contacts within the confines of due
process before the Court can exercise personal jurisdiction over defendant
Drudge.
[7] It is undisputed that the Drudge Report transmission in
question was written, published and transmitted by defendant Drudge from his
computer located in Los Angeles, California.
It is also undisputed that the tortious injury caused by defendant
Drudge's act of transmitting the report was suffered by the Blumenthals in the
District of Columbia. The only question
before this Court therefore is whether defendant *54 Drudge (1) regularly
does or solicits business in the District of Columbia, or (2) derives
substantial revenue from goods used or consumed or services rendered in the
District, or (3) engages in any other
persistent course of conduct here. See
D.C.Code
§ 13-423(a)(4).
Justice Ginsburg in Crane v. Carr has
described these as the "plus factors," factors that demonstrate some
"reasonable connection" between the jurisdiction in which the court
sits "separate from and in addition to" the injury caused in the
jurisdiction. Crane
v. Carr,
814 F.2d at 762.
The "plus factor" or factors need not be related to the act
that caused the injury; all that is
required is "some other reasonable connection between the defendant and
the forum." Id.
at 762-63.
The "plus factor" does not itself provide the basis for jurisdiction
(the injury does) "but it does serve to filter out cases in which the
inforum impact is an isolated event and the defendant otherwise has no, or
scant, affiliation with the forum."
Id.
at 763.
The question here is whether plaintiffs have shown a "persistent
course of conduct" by defendant Drudge in the District of Columbia or
other reasonable connections between the District and Drudge besides the
alleged defamatory statement and the alleged injury.
Plaintiffs point out that the Drudge Report
has been regularly transmitted over the Internet to Drudge's subscribers and
repeatedly posted on Drudge's web site, where it has been available 24 hours a
day to District residents; that Drudge
personally maintains a list of e-mail addresses, which enables him to
distribute the Drudge Report to anyone who requests it, including e-mail addresses in the District of
Columbia; and that he has solicited
contributions and collected money from persons in the District of Columbia who
read the Drudge Report. Plaintiff's
Opposition to Defendant Drudge's Motion to Dismiss ("Pls.' Opp'n") at
19-21. In addition, they state that
Drudge has traveled to the District of Columbia twice, including once for a
C-SPAN interview that was for the express purpose of promoting the Drudge
Report. Pls.' Opp'n at 20. Plaintiffs also note, and defendant Drudge
admits, that Drudge has been in contact (via e-mail, telephone and the U.S.
mail) with District residents who supply him with gossip. Hearing Tr. at 51, 61-63; Drudge Decl. I ¶ ¶ 25, 27, 31.
Defendant Drudge argues that he has not
specifically targeted persons in the District of Columbia for readership,
largely because of the non-geographic nature of communicating via the Internet. For example, while it is true that subscribers
to the Drudge Report include District residents, generally the only information
about those subscribers available to Drudge is an e-mail address-- an address
that, unlike a postal address or even a telephone number, typically provides no
geographic information. For instance,
if Jane Doe from the District of Columbia subscribes to the Drudge Report, it
is most likely sent to an e-mail address such as "[email protected],"
and Drudge has no idea where Jane Doe lives or receives the Report. The same is true for on-line browsers who
read the Drudge Report, since screen names used to browse the web also are not generally identified by geographic
location. Defendant Drudge also claims
that he has never advertised the Drudge Report column or web site in physical
locations or in local newspapers in the District of Columbia. Drudge Decl. I ¶ ¶ 28-30, 33;
Hearing Tr. at 42-43.
Defendant Drudge also argues that his travel
to Washington, D.C. is not sufficient to establish a persistent course of
conduct in the District of Columbia because his contacts have been so
infrequent and sporadic that they are simply not enough to be viewed as
"persistent." As for his
solicitation of contributions in the District of Columbia, Drudge claims that
his solicitation was directed to all readers of the Drudge Report and not
specifically aimed at the District.
Furthermore, from that appeal Drudge received only approximately $250
from fewer than fifteen persons in the District of Columbia. Drudge Decl. I ¶ 24;
Hearing Tr. at 49-50. The Court
concludes that plaintiffs have the better of the argument; defendant Drudge has had sufficient contacts
with the District of Columbia to warrant the exercise of personal jurisdiction.
The legal questions surrounding the exercise
of personal jurisdiction in "cyberspace" are relatively new, and
different courts have *55 reached different conclusions as to how far
their jurisdiction extends in cases involving the Internet. Generally, the debate over jurisdiction in
cyberspace has revolved around two issues:
passive web sites versus interactive web sites,
and whether a defendant's Internet-related contacts with the forum combined
with other non-Internet related contacts are sufficient to establish a
persistent course of conduct. As one
court has explained:
At one end of the spectrum are situations where a defendant
clearly does business over the Internet.
If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of computer
files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a
defendant has simply posted information on an Internet Web site which is
accessible to users in foreign jurisdictions.
A passive Web site that does little more than make information available
to those who are interested in it is not grounds for the exercise [of] personal
jurisdiction. The middle ground is
occupied by interactive Web sites where a user can exchange information with
the host computer. In these cases, the
exercise of jurisdiction is determined by examining the level of interactivity
and commercial nature of the exchange of information that occurs on the Web
site.
Zippo
Mfg. Co. v. Zippo Dot Com, Inc.,
952 F.Supp. 1119, 1124 (W.D.Pa.1997).
In Heroes, Inc. v. Heroes Foundation,
Judge Flannery found that he did not need to decide whether the defendant's
home page by itself subjected the defendant to personal jurisdiction in the
District of Columbia because the defendant
had substantial non-Internet related contacts with the District that were
sufficient under the D.C. long-arm statute.
The defendants's home page solicited contributions and provided a
toll-free number which browsers used to donate money; the solicitation also appeared in
advertisements in the Washington Post. Judge Flannery concluded that these
non-Internet related contacts with the District of Columbia, together with the
maintenance of a web site constantly available to D.C. residents, constituted a
persistent course of conduct that reasonably connected the defendant to the
forum. Heroes,
Inc. v. Heroes Foundation,
958 F.Supp. 1, 4-5 (D.D.C.1996); see also Telco
Communications v. An Apple A Day,
977 F.Supp. 404, 407 (E.D.Va.1997) (posting of
web site advertisement solicitation over the Internet, which could be accessed
by Virginia residents 24 hours a day, is a persistent course of conduct; two or three press releases rise to the level
of regularly doing or soliciting business);
Digital
Equipment Corp. v. Altavista Technology, Inc.,
960 F.Supp. at 467 (maintenance of web site that
can be accessed by Massachusetts citizens 24 hours a day coupled with other
contacts is persistent course of conduct sufficient to confer personal
jurisdiction). [FN16] The courts in each of these cases required
only a relatively tenuous electronic connection between the creator of a web
site and the forum to effect personal jurisdiction, so long as there were
sufficient other non-Internet connections.
FN16. The provisions of the long-arm statutes involved in Telco
and Digital Equipment (Massachusetts long-arm statute, M.G.L.
ch. 223A § 3(d); Virginia long-arm
statute, Section 8.01-328.1(a)(4)) are quite similar to if not exactly the same
as subsection (a)(4) of the District of Columbia long-arm statute.
As noted, many courts have focused on the
level of interactivity of a web site in determining whether there was personal
jurisdiction. In Cybersell, Inc. v.
Cybersell, Inc., the court noted that an interactive web site allows users
to "exchange information with the host computer" and concluded that
courts must look at the "level of interactivity and [the] commercial
nature of the exchange of information that occurs on the Web site to determine
if sufficient contacts exist to warrant the exercise of jurisdiction." Cybersell,
Inc. v. Cybersell Inc.,
130 F.3d 414, 418 (9th Cir.1997) (internal
quotation marks omitted). Compare Maritz,
Inc. v. Cybergold, Inc.,
947 F.Supp. 1328, 1332-33 (E.D.Mo.1996) (exercise
of jurisdiction warranted where defendant's interactive web site encouraged
browsers to add their address to mailing list that subscribed the user to the
service), and *56Zippo
Mfg. Co. v. Zippo Dot Com, Inc.,
952 F.Supp. at 1122-23 (interactive web site where defendants contracted with
3,000 individuals and seven internet providers in forum state conferred
personal jurisdiction), with Bensusan
Restaurant Corp. v. King,
937 F.Supp. 295, 299- 300 (S.D.N.Y.1996), aff'd,
126
F.3d 25 (2d Cir.1997) (passive web site which
only posted information for interested persons who may have accessed the web
site not sufficient for exercise of jurisdiction), and Hearst
Corporation v. Goldberger,
No. 96 Civ. 3620(PKL)(AJP), 1997 WL 97097, at * 15 (S.D.N.Y. Feb. 26, 1997) (no persistent course of conduct because defendant's
passive web site only provided information regarding future services).
Under the analysis adopted by these courts,
the exercise of personal jurisdiction is contingent upon the web site involving
more than just the maintenance of a home page;
it must also allow browsers to interact directly with the web site on
some level. In addition, there must
also be some other non-Internet related contacts between the defendant and the
forum state in order for the court to exercise personal jurisdiction. Because the Court finds that defendant
Drudge has an interactive web site that is accessible to and used by District
of Columbia residents and, in addition, that he has had sufficient non-Internet
related contacts with the District of Columbia, the Court concludes that Drudge
has engaged in a persistent course of conduct in the District. The exercise of personal jurisdiction over
defendant Drudge by this Court therefore is warranted. [FN17]
FN17. Defendant
Drudge's reliance on this Court's decision in Mallinckrodt
v. Sonus Pharmaceuticals, Inc. is misplaced. In Mallinckrodt, this Court held that
an "AOL transmission from Seattle to Virginia, which was subsequently
posted on an AOL electronic bulletin board and may have been accessed by AOL
subscribers in the District of Columbia, cannot be construed as 'transacting
business' in the District of Columbia" under subsection (a)(1) of the
long-arm statute, D.C.Code
§ 13- 423(a)(1). Mallinckrodt
v. Sonus Pharmaceuticals, Inc.,
989 F.Supp. 265, 271 (D.D.C.1998). The defendant posted a message that was not
sent to or from the District, the content of the message did not concern
persons residing in the District or incorporated in the District, neither
plaintiffs nor defendants worked or lived in the District, and the defendant's
electronic bulletin board was in no way interactive, as is the case with the
Drudge Report. This Court, therefore
found that the defendant had no reasonable connection to the District, even
though a person from the District may have read the message, because it had not
engaged in "an act purposefully or foreseeably aimed at the District of
Columbia." Id. The
defendant's electronic bulletin board message therefore did not
"constitute transacting business within the District of Columbia for
purposes of [subsection (a)(1) ] of the long-arm statute." Id.
(internal quotations omitted).
With respect to subsection (a)(4) of the long-arm statute,
the Court in Mallinckrodt concluded
that plaintiffs fared no better, primarily because plaintiffs did not live or
work in the District of Columbia and therefore did not "suffer[ ] any
injury in the District of Columbia that they could not have suffered or did not
suffer in any state in the nation where someone may have read the [AOL] message
and reacted negatively toward plaintiffs."
Mallinckrodt
v. Sonus Pharmaceuticals, Inc.,
989 F.Supp. 265, 1998 WL 6546 at *8. The
Blumenthals, by contrast, do live and work in the District of Columbia and
suffered injury in the District.
Furthermore, in contrast to the facts in Mallinckrodt, the Court
finds that in this case defendant has engaged in a persistent course of conduct
in the District of Columbia.
Despite the attempts of Drudge and his counsel
to label the Drudge Report as a "passive" web site, the Court finds
this characterization inapt. The Drudge
Report's web site allows browsers, including District of Columbia residents, to
directly e-mail defendant Drudge, thus allowing an exchange of information
between the browser's computer and Drudge's host computer. Hearing Tr. at 4243, 61; see Zippo
Mfg. Co. v. Zippo Dot Com, Inc.,
952 F.Supp. at 1124. In addition, browsers who
access the website may request subscriptions to the Drudge Report, again by
directly e-mailing their requests to Drudge's host computer. In turn, as each new edition of the Drudge
Report is created, it is then sent by Drudge
to every e-mail address on his subscription mailing list, which includes the
e-mail addresses of all browsers who have requested subscriptions by directly
e-mailing Drudge through his web site.
The constant exchange of information and direct communication that
District of Columbia Internet users are able to have with Drudge's host
computer via his web site is the epitome of web site interactivity.
[8] Not only is defendant Drudge's web site interactive, the
subject matter of the Drudge Report primarily concerns political *57
gossip and rumor in Washington, D.C. Defendant Drudge characterizes himself as
the "Thomas Paine of the Internet, ... who is circulating information for
the citizenry reporting on [federal] governmental abuses .... and earthquakes...at
the White House." Hearing Tr. at
37, 41; see Pls.' Opp'n, Ex. 1.
Even though Drudge may not advertise in physical locations or local newspapers
in Washington, D.C., the subject matter of the Drudge Report is directly
related to the political world of the Nation's capital and is quintessentially
"inside the Beltway" gossip and rumor. Drudge specifically targets readers in the
District of Columbia by virtue of the subjects he covers and even solicits
gossip from District residents and government officials who work here. Drudge Decl. I ¶ ¶ 27, 31;
Hearing Tr. at 61-63. [FN18] By targeting the Blumenthals who work in the
White House and live in the District of Columbia, Drudge knew that "the
primary and most devastating effects of the [statements he made] would be felt" in the District of
Columbia. Telco
Communications v. An Apple A Day,
977 F.Supp. at 407. He should have had no illusions that he was
immune from suit here.
FN18. Drudge is not
a reporter, a journalist or a newsgatherer.
He is, as he himself admits, simply a purveyor of gossip. See Complaint, Exs. 6, 8. His
argument that he should benefit from the "news gathering exception"
to subsection (a)(4) of the long-arm statute merits no serious
consideration. Cf. Moncrief
v. Lexington Herald-Leader Co.,
807 F.2d 217, 221-22 (D.C.Cir.1986).
In addition, defendant Drudge also solicited
contributions from District residents via the Drudge Report's homepage. While during the time period relevant to
this case, defendant Drudge may have received only $250 from fifteen District
of Columbia residents from that advertised solicitation, the Drudge Report was
always accessible in the District, via AOL and through Drudge's world wide web
site, making the advertised solicitation was repeatedly available to District
residents.
Defendant Drudge also has had a number of
non-Internet related contacts with the District. He sat for an interview with C-SPAN in
Washington, D.C. and visited the District of Columbia on at least one other
occasion. He also contacts District of Columbia residents via
telephone and the U.S. mail in order to collect gossip for the Drudge
Report. Drudge Decl. I ¶ 31;
Hearing Tr. at 61. These
non-Internet related contacts with the District of Columbia, coupled with the
interactive nature of Drudge's web site, which particularly focuses on
Washington gossip, are contacts that together are sufficient to establish that
defendant Drudge engaged in a persistent course of conduct in the District of
Columbia.
In sum, the Court concludes that the
circumstances presented by this case warrant the exercise of personal
jurisdiction under subsection (a)(4) of the District of Columbia long-arm
statute because of: (1) the
interactivity of the web site between the defendant Drudge and District
residents; (2) the regular distribution
of the Drudge Report via AOL, e-mail and the world wide web to District
residents; (3) Drudge's solicitation and
receipt of contributions from District residents; (4) the availability of the web site to
District residents 24 hours a day; (5)
defendant Drudge's interview with C-SPAN;
and (6) defendant Drudge's contacts with District residents who provide
gossip for the Drudge Report. The
requirements of subsection (a)(4) of the District of Columbia long-arm statute
have been satisfied.
B. Due Process
[9][10] Traditionally, in order to exercise personal jurisdiction
over an out-of-state defendant, a court must determine whether the defendant has sufficient minimum contacts with the
jurisdiction in which the court sits such that maintenance of a suit does not
offend "traditional notions of fair play and substantial
justice." International
Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). While in the Internet context there must be
"something more" than an Internet advertisement alone "to
indicate that the defendant purposefully (albeit electronically) directed his
activity in a substantial way to the forum state," Cybersell,
Inc. v. Cybersell, Inc.,
130 F.3d at 414, such that he should
"reasonably anticipate being haled into court" there, Burger
King Corp. v. Rudzewicz,
471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), that test is *58 easily met here. See, e.g., Digital
Equipment Corp. v. Altavista Technology, Inc.,
960 F.Supp. at 469-70. Because subsection (a)(4) of the long-arm
statute does not reach the outer limits of due process, Crane
v. Carr,
814 F.2d at 762, and the Court has concluded that
there are sufficient "plus factors" to meet the requisites of
subsection (a)(4), it follows that there are also sufficient minimum contacts
to satisfy due process. Drudge's motion
to dismiss or transfer for want of personal jurisdiction therefore will be
denied.
SO ORDERED.
992 F.Supp. 44, 26 Media L. Rep. 1717, 12
Communications Reg. (P&F) 367
END OF
DOCUMENT