Allegedly Defamatory Tweet About Non-Resident Insufficient to Confer Jurisdiction
This is a lawsuit for defamation brought by Jason Miller. The particular claims in question arise out of a tweet. Miller was an advisor on the Trump campaign and later became a commentator and consultant. He was allegedly involved in an affair with another Trump campaign staffer that resulted in a child. The other staffer and Miller split, and the split was contentious. She filed a declaration (sealed) in court accusing him of previously “surreptitiously giving a woman an ‘abortion pill’ . . . .”
Reporter Katherine Krueger reported on the filings and the contentious split generally. Miller sued Krueger and her publisher in Florida. Following filling of the lawsuit, Will Menaker posted the following (with a link to New York Post’s Page Six on the lawsuit):
“Rat-faced baby-killer and Trump PR homunculus, Jason Miller, is suing my girlfriend for $100 million, cool!”
(The tweet is here.) Miller filed an amended complaint adding a claim against Menaker based on the tweet.
Menaker lives in New York. Miller lives in Virginia. Menaker moved to dismiss for lack of personal jurisdiction.
Does the tweet fall within the Florida long-arm statute? The court grapples with the question of whether the tweet constitutes a tortious act “within the state”. The court notes the split of authority, with some courts saying that the tweet has to concern a Florida resident. The court says it need not resolve this issue, as asserting jurisdiction would not satisfy constitutional due process.
Did Menaker purposefully avail himself of Florida laws? The court first looks to Calder’s effects test, under which an out of state defendant’s publication of an article that would cause damage in California was held to support jurisdiction. Calder said that express aiming was satisfied because defendants “knew the brunt of the injury would be felt in [California] . . . .” In contrast, here there is no allegation of harm in Florida. Sure, the subject matter of the tweet is a Florida family law dispute, but the brunt of the injury occurred elsewhere, since plaintiff was not a Florida resident.
The court also says that the traditional minimum contacts test is not satisfied as to Menaker. He’s had no contacts with Florida, and has not visited there in the past 10 years. Again, the court focuses on the fact that the harm would be felt in another state entirely. The court closes the personal jurisdiction analysis with the following:
In so holding, the Court joins other federal district courts tasked with evaluating the impact of a tweet on personal jurisdiction. For example, a federal court in Michigan recently found insufficient minimum contacts where the tweet in question “was not tailored to a Michigan audience,” and there was no “evidence that [defendant] marketed or circulated the article to people in Michigan specifically as opposed to [defendant’s] readers generally.” [Vangheluwe v. Got News]. The court rejected the plaintiff’s attempt at establishing personal jurisdiction through guesswork, concluding the defendant’s tweet lacked a Michigan focus.
Indeed, courts have uniformly rejected the argument that a tweet, not specifically directed to a forum state, is a sufficient minimum contact to confer personal jurisdiction under the Due Process Clause. In line with this authority, the Court concludes Menaker’s Tweet lacks a Florida focus, rendering the exercise of personal jurisdiction over Menaker impermissible under the Due Process Clause.
The court also looks at the fair play and substantial justice factors and says those too point against finding jurisdiction.
Personal jurisdiction online is making a comeback! This came up in the GotNews case which I blogged about last month (“Post-Charlottesville Doxxing and Misidentification Creates Legal Risks–Vangheluwe v. GotNews”).
The facts, and specifically, plaintiff’s state of residence likely made this an easy call. A tweet feels a lot like sending something out into the stream of commerce. The average Twitter user is not thinking about the locale of the subjects mentioned in the tweet or where their followers are located. Some people use it to interact a lot with followers in their locale, but this is probably the exception. It’s worth noting also that this is a tweet referencing a news story. Menaker, who is famous for the “Chapotraphouse” podcast, embraces a particular brand of humor, and this is merely a snarky tweet about a news article (and lawsuit). Jurisdiction aside, this seems like a tough case against Menaker.
The underlying defamation case is interesting and looks tough also. Plaintiff’s lawyers seem to have a huge appetite for these cases. The discovery can’t be easy on plaintiff, and there’s generally a big risk. But that does not seem to dissuade the litigants.
Case citation: Miller v. Gizmodo Media Group, LLC, 2019 U.S. Dist. Leis 66299 (S.D. Fl. Apr. 18, 2019).