Facebook Defeats Alabama Injunction for Lack of Jurisdiction–Facebook v. KGS

This case involves an allegedly “predatory” adoption. As usual with custody disputes, the facts are heartbreaking. The birth mom agreed to place her unborn baby into adoption, but then changed her mind. The adoption court eventually awarded custody to the adoptive mom. While case was pending, the birth mom told her story to Riben, who published two Huffington Post stories criticizing the adoption. If you care to dive deeper, these appear to be the stories: part 1 and part 2. The stories named the birth mom, adoptive mom, and baby and included photos of the baby. An unrelated party, D’Arcy, posted on Facebook sympathetically to the birth mom and included baby photos and the adoptive mom’s name. D’Arcy’s post allegedly spurred substantial online invective towards the adoptive mom. The adoptive mom asked Facebook to remove D’Arcy’s post, but Facebook only removed the “cover photo.” A complex multi-defendant lawsuit ensued. On appeal to the Alabama Supreme Court, the court dismisses the lawsuit.

Facebook raised Section 230 and First Amendment defenses, but the court doesn’t address those. Instead, it says Alabama doesn’t have jurisdiction over Facebook in this case. I recognize this may sound odd to non-lawyer readers. Facebook is a giant corporation and one of the most highly valued companies of all time. If it were a country, it would be the most populous in the world. Likely millions of Alabamans have Facebook accounts, and I suspect a million Alabamans will use Facebook today. How in the world could Facebook not be subject to lawsuits in Alabama? The court explains:

General jurisdiction: Facebook “is not incorporated in Alabama and does not maintain its principal place of business in Alabama [and] it had no offices, property, or employees located in Alabama.” Facebook is qualified to do business in Alabama and all of the other 50 states, but the court cites Daimler to say “[a] corporation that operates in many places can scarcely be deemed ‘at home’ in all of them.” The court summarizes:

the Supreme Court has firmly rejected any notion that a nonresident defendant’s “doing business” in a forum state is sufficient, in and of itself, to subject the out-of-state defendant to the general personal jurisdiction of the forum state

Specific jurisdiction: The plaintiff primarily relied on the Calder v. Jones effects test. The court responds:

we cannot say that K.G.S. demonstrated that Facebook’s suit-related conduct created a “substantial connection” with Alabama. To the extent that K.G.S. relies on the contacts Facebook made with K.G.S. and her attorney in response to the complaints she and her attorney filed with Facebook about the Facebook page, those contacts are insufficient to establish minimum contacts with Alabama. Facebook’s contacts with Alabama that were made merely in response to K.G.S.’s or her attorney’s contact with Facebook are “precisely the sort of ‘unilateral activity’ of a third party that ‘cannot satisfy the requirement of contact with the forum State.'” Further, to the extent that Facebook’s failure to act to remove the Facebook page can be analyzed separately from the responses it sent to K.G.S. and her attorney, we can only conclude that this intentional conduct was expressly aimed at K.G.S. herself, and not at Alabama as a forum….Focusing, as we must, on the suit-related contacts Facebook itself created with Alabama — not Facebook’s contacts with K.G.S. or K.G.S.’s contacts with Alabama –- we must conclude that there is an absence of suit-related conduct that creates a substantial connection with Alabama.

As far as I can tell, all of the players in the adoption dispute were based in Alabama. So to say that Facebook’s conduct wasn’t directed to Alabama seems to treat that as a private dispute rather than a community-wide concern in Alabama.

In a footnote, the court adds: “the general accessibility of Facebook’s Web site or mobile application in a forum does not provide a sufficient connection to the forum to support the exercise of general or specific jurisdiction.”

The court doesn’t mention the abysmal and antiquated Zippo ruling at all. Indeed, notice how far from Zippo we’ve come. Under Zippo, Facebook is a quintessential “interactive” service; and Facebook’s extreme degree of interactivity would almost certainly point towards finding jurisdiction over it. This court reaches the opposite result. This partially reflects Zippo’s analytical defects of focusing on defendants rather than defendants’ conduct giving rise to the lawsuit; but it also reflects the intervening U.S. Supreme Court jurisprudence on jurisdiction, which has taken a significant tilt towards defendants in the past decade. As a result, this opinion should count as another implicit but decisive rejection of the Zippo precedent. I wish we could just erase the Zippo precedent entirely rather than have these piecemeal sub silento repudiations of it. Until then, if you’re citing Zippo favorably, you should feel badly about your choice.

Privacy Invasion: Separately, the court concludes that the Facebook page discussing the adoption didn’t constitute a privacy invasion (McLeod allegedly publicized the story online):

at the time McLeod publicized K.G.S.’s full name and photographs of Baby Doe on the Facebook page, that information was not private but, instead, had already been made public by what K.G.S. described as “a prominent media outlet” — the Huffington Post. It is undisputed that the Facebook page was not created until after the Huffington Post published its two-part article using K.G.S.’s full name and identifying her as the petitioner in the contested adoption proceeding involving Baby Doe. The article also published photographs of Baby Doe and very specific details about the facts underlying the adoption contest. Thus, because it was undisputed that K.G.S.’s name and Baby Doe’s likeness were made public before McLeod ever publicized that information on the Facebook page, K.G.S. has not demonstrated a likelihood of success on the merits of her claim that McLeod invaded her privacy….

Conclusion: Reading the opinion, I got the sense that the trial court was overly solicitous to the plaintiff and Supreme Court wasn’t solicitous enough to the plaintiff. In the end, the Alabama Supreme Court eliminates all of the relief that the trial court had awarded to the plaintiff, leaving her with no remedy in this case. A tough result in a tough case.

I recognize that this ruling takes place in the shadow of the social debates and laws regarding abortion and adoption. I’ve chosen not to address those issues mostly because of my lack of expertise. However, I’d welcome your well-informed and non-ranty comments about how this ruling might implicate those issues.

Case citation: Facebook, Inc. v. K.G.S., 2019 WL 2710235 (Ala. Sup. Ct. June 28, 2019)