Texas federal courts have sent a clear message to those considering filing a defamation suit over online statements – personal jurisdiction only exists if the statements concern the forum or the defendant is located in the state. In December, the Fifth Circuit held in Johnson v. HuffPost that a non-resident website accessible in Texas that collects data from, and sells online ads and merchandise to, residents in Texas is not subject to personal jurisdiction there. Specific jurisdiction over online statements, instead, requires the forum to be the "focal point" of the alleged libel and the harm suffered.

In January, the Eastern District of Texas rejected similar arguments that operating an "active website" and YouTube channel, publishing statements on Twitter, and soliciting subscriptions in Texas conveyed specific jurisdiction in Nunes v. NBCU. There, too, the statements at issue did not concern Texas. The court also held that general jurisdiction all but demands a defendant be located in the forum, even if it has affiliates in the state, and declined jurisdictional discovery because it would be fruitless.

Johnson v. HuffPost

On December 23, 2021, the Fifth Circuit, 2-1, affirmed the dismissal of conservative activist Charles Johnson's defamation claim against TheHuffingtonPost.com (HuffPost) because Johnson failed to adequately plead the "key question" in libel cases—that the forum state was "the focal point" of the alleged libel and the harm suffered. Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (quoting Calder v. Jones, 465 U.S. 783, 789 (1984)). The HuffPost article, which identified him as "noted Holocaust denier and white nationalist," neither concerned Texas nor relied on any Texas sources. It, instead, involved a meeting between Johnson and two members of Congress in Washington, D.C.

Our decision in Revell requires dismissal. HuffPost is interactive, but its story about Johnson has no ties to Texas. The story does not mention Texas. It recounts a meeting that took place outside Texas, and it used no Texan sources. Accordingly, we lack jurisdiction over HuffPost with respect to Johnson's libel claim.

Id. at 319 (citing Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002)).

Johnson's allegations—that HuffPost was "visible" in Texas, sells ads and merchandise to Texans, contracted with advertisers from Texas, and collects data from viewers in Texas— failed to meet the specific jurisdiction threshold. Id. at 317.

[M]ere accessibility cannot demonstrate purposeful availment, as we and our sister circuits have held many times. Though HuffPost's site shows ads and sells merchandise, neither act targets Texas specifically. And even if those acts did target Texas, neither relates to Johnson's claim, so neither supports specific jurisdiction

Id. at 326.

The court distinguished Keeton v. Hustler Mag., 465 U.S. 770 (1984), emphasizing the differences between magazines and websites. The Keeton court “stressed the substantial physical circulation of print media because that reflects purposeful availment of the forum state.” Id. at 325 (citing Walden v. Fiore, 571 U.S. 277, 285 (2014)). Websites, unlike magazines, are “circulated to the public by virtue of their universal accessibility, which exists from their inception. That's why clicks, visits, and views from forum residents cannot alone show purposeful availment. They are not evidence that ‘the defendant has formed a contact with the forum state.'” Id.

The court explained that personal jurisdiction requirements ensure fairness and protect federalism. Subjecting a website to jurisdiction in a forum when the claim does not relate to or arise from contacts with the forum is unfair and inconsistent with a defendant's reasonable expectations. “Grannies with cooking blogs do not, and should not, expect lawsuits from Maui to Maine.” Id. at 320.

In dissent, Judge Catharina Haynes wrote that HuffPost was subject to specific jurisdiction in Texas under Keeton because its presence in the state was not “random, isolated, or fortuitous.” By “continuously and deliberately” exploiting the Texas market by actively seeking Texas readers and selling them ads, HuffPost should expect to be haled into court there. Id. at 329. These actions directed toward Texas, according to Judge Haynes, are “the modern equivalent of Keeton sending magazines to New Hampshire.” The majority countered that the dissent's vast view of personal jurisdiction would cause “unlimited jurisdiction over virtual defendants—and not just our cooking-blog granny.”

Subjecting a website to jurisdiction in a forum when the claim does not relate to or arise from contacts with the forum is unfair and inconsistent with a defendant's reasonable expectations. "Grannies with cooking blogs do not, and should not, expect lawsuits from Maui to Maine."

Nunes v. NBCU

One month later, the Eastern District of Texas held that NBCUniversal (NBCU) was not subject to personal jurisdiction in Texas regarding California Congressman Devin Nunes's defamation claim based on statements from The Rachel Maddow Show about Nunes's handling of a package from alleged Russian agent Andriy Derkach during the 2020 presidential election. Nunes v. NBCU, No. 21-cv-00608, ECF No. 21 (E.D. Tex. Jan. 28, 2022).

Judge Amos L. Mazzant III found that Nunes failed to plead that NBCU, who is incorporated in Delaware and headquartered in New York, was subject to general jurisdiction in Texas. Order at pp. 5-9. Even taking Nunes's allegations about NBCU and any Texas affiliates as true, NBCU's contacts with Texas “fall far short” of establishing general jurisdiction, Mazzant wrote. General jurisdiction requires that the corporation itself—not its agents, subsidiaries, or affiliates—be “at home” in the forum state. Order at p. 7 (quoting Zoch v. Daimler, AG, No. 6:16-CV-00057, 2017 WL 2903264, at *3 (E.D. Tex. May 16, 2017)). The “activities and physical presence of NBCU-affiliates in Texas cannot create general jurisdiction over NBCU.” Id.

Applying Calder, the court found that Nunes also failed to plead that NBCU was subject to specific jurisdiction based on national reporting about a California citizen and U.S. Representative with no references to activities in Texas or Texas sources. “Aside from conclusory allegations, Nunes presents no evidence that the statements made in the Report or any actions by NBCU related to the Report's publication directly targeted Texas residents. Nor can he.” Order at pp. 11-12. The court rejected Nunes's “flawed” specific jurisdiction allegations that NBCU (1) “specifically targeted and purposely exploited the Texas market by selling its cable television programs, including The Rachel Maddow Show, to subscribers and consumers in Texas;” (2) operates an “active website” and YouTube channel; and (3) broadcasted the Report to “millions of subscribers and followers” on Twitter. The court wrote that anyone in the world with an internet connection, not exclusively Texas viewers, could access NBCU's website and Twitter accounts.

Posting an allegedly defamatory statement on Twitter does not satisfy Calder's “effects test” merely because some members of the Tweet's audience fortuitously reside in the forum state. This remains true even where the publisher of the statement is aware that some viewers could be forum residents.

Order at p. 12.

The court denied Nunes's request for jurisdictional discovery because the lack of personal jurisdiction was “clear” and further discovery “would serve no purpose.” Order at pp. 15-17. General jurisdiction would not exist even if NBCU had additional offices or employees in Texas. Id. And discovery would not change the undisputed facts that Maddow's reporting did not focus on Texas or rely on Texas sources. Id.

After finding a lack of personal jurisdiction in Texas, and pursuant to 28 U.S.C. § 1406(a), the court ordered the case be transferred to the Southern District of New York, where NBCU is headquartered and prepared, produced, and published the Report. Order at pp. 17-20.

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