internet defamation – Attorney Evan Brown

January 23, 2024 Personal Jurisdiction

RFK Jr.’s online defamation case against Daily Kos writer tossed on jurisdictional grounds

online defamation

Presidential candidate Robert Kennedy Jr. sued Daily Kos writer David Vickery over a blog post Daily Kos published on August 29, 2020. The post described Kennedy’s participation in a Berlin protest against COVID-19 measures and included various allegations that Kennedy asserted were untrue.

Jurisdictional Challenges

Vickery moved to dismiss the case, arguing the federal court sitting in New Hampshire where plaintiff brought the suit had no personal jurisdiction over Vickery. Kennedy argued that the New Hampshire court could exercise specific personal jurisdiction over Vickrey, based on the effects of the alleged defamation in New Hampshire. But Vickery argued his connection with New Hampshire was minimal – he resided in Maine, had not worked in New Hampshire for over a decade, and did not engage in activities connecting him to the state in the context of the Daily Kos article.

Court’s Analysis and Decision

Applying the principles laid out in the well-known case of Calder v. Jones, the court evaluated the “purposeful availment” aspect of personal jurisdiction. The court observed that Kennedy needed to demonstrate that Vickrey intentionally directed his conduct towards New Hampshire, anticipating that the impact of his actions would be felt there. But the court found that Kennedy’s claims did not hold up under this scrutiny. It found that the article was published long before Kennedy’s presidential run, negating any intention to influence New Hampshire voters specifically. And the continuation of the article’s online presence did not equate to republishing, a key consideration in defamation cases.

Conclusion

So the court ruled in favor of Vickrey, granting his motion to dismiss due to the lack of personal jurisdiction. Kennedy’s motion for preliminary discovery and an evidentiary hearing on the jurisdictional issue was also denied.

Kennedy v. Vickrey, 2024 WL 232104 (D.N.H., January 22, 2024)

See also:

January 9, 2024 Defamation

Second Circuit rules in favor of Barstool Sports in high profile online defamation case

The Second Circuit Court of Appeals has ruled in favor of Barstool Sports and certain of its employees in the longstanding defamation case brought by Michael Rapaport. The actor and comedian Rapaport and his company, Michael David Productions Inc., had appealed a lower court decision that had granted summary judgment to Barstool Sports and several of its employees, including founder David Portnoy.

Barstool Sports, a media and comedy brand established in 2004, is known for its unfiltered content across various platforms. Michael Rapaport, a prominent figure in entertainment, is similarly recognized for his candid commentary on social and political issues. The partnership between Rapaport and Barstool Sports began in 2017 but soon deteriorated, leading to a public and messy feud.

The Dispute

The conflict escalated when Rapaport had a disagreement with Barstool personality Adam Smith. This led to a series of derogatory exchanges on social media, ultimately resulting in Rapaport’s dismissal from Barstool. Portnoy publicly announced the split, citing Rapaport’s negative comments about Barstool’s fanbase. Following this, both parties continued to engage in a bitter exchange of insults online.

Lower Court Proceedings

Rapaport filed a lawsuit against Barstool, alleging defamation, among other claims. The defamation claim was based on multiple comments Barstool personalities made on various platforms. The district court, however, ruled in favor of Barstool, leading to Rapaport’s appeal.

The Appellate Court’s Decision

The appellate court observed the criteria under New York law for establishing defamation. The court differentiated between statements of fact and expressions of opinion, with the latter being protected and not actionable for defamation. The analysis focused on the context in which the statements were made, considering the nature of the language used and the broader setting of the dispute.

The court found that the statements made by Barstool, including accusations of racism, fraud, and other personal attacks, were part of a hyperbolic and vulgar feud, and were thus likely to be perceived as opinions rather than factual assertions. Moreover, the court noted that many statements were made on platforms where opinionated content is expected, further undermining the claim that they conveyed factual information about Rapaport.

Conclusion

The appellate court affirmed the district court’s judgment, emphasizing that the context and nature of the statements were key in determining their status as non-actionable opinions. The decision underlines the complexities of defamation claims in the digital era, where the line between fact and opinion can be blurred by the nature of the platform and the style of communication used.

This case serves as a reminder of the challenges in navigating defamation in the age of social media, where public figures often engage in heated exchanges that can have legal implications. The ruling reinforces the importance of context in evaluating such claims, setting a precedent for future defamation cases in the digital landscape.

Rapaport v. Barstool Sports Inc., 2024 WL 88636 (2nd Cir. January 9, 2023) [Link to decision]

June 12, 2008 Defamation

California’s anti-SLAPP statute not applied to request for subpoena

Request for subpoena to unmask anonymous defendants in prospective Internet defamation case did not set forth “cause of action” or initiate judicial proceedings.

Tendler v. www.jewishsurvivors.blogspot.com, No. H031130, 2008 WL 2352497 (Cal.App. 6th Dist. June 10, 2008)

Some people (anonymously) set up several blogs on Google’s Blogger, and posted some nasty things about Rabbi Tendler. Rabbi Tendler got an Ohio state court to issue subpoenas to Google, requiring Google to turn over the IP addresses used to create the offending blog posts. Google refused to comply with the Ohio subpoenas, so Rabbi Tendler requested a California court issue subpoenas (which Google would more likely respond to) based on the Ohio subpoenas.

The Electronic Frontier Foundation and Public Citizen stepped in on behalf of the anonymous bloggers (the “Does”) and moved to quash the subpoenas. The following week, the Does filed an anti-SLAPP motion under California Code of Civil Procedure section 425.16, seeking to “strike [the] proceeding” and recover attorney’s fees.

Section 425.16, the anti-SLAPP statute, provides, in relevant part that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” A prevailing defendant under this statute can recover his or her attorney’s fees.

The trial court granted the anti-SLAPP motion and awarded about $20,000 in attorney’s fees to the Does. Rabbi Tendler sought review with the California Court of Appeal. The appellate court reversed.

The court looked to the plain meaning of the statute, observing that section 425.16 requires that the cause of action to be stricken must be contained in a complaint, cross-complaint, petition or similar pleading initiating a judicial proceeding. The request for subpoena in this case was not any of those sorts of pleadings, and it did not initiate a judicial proceeding.

The Does looked for support from the decision of Krinsky v. Doe 6, 159 Cal.App.4th 1154 (2008). The court refused, however, to find Krinsky to be instructive. In that case, the court held that a motion to quash a subpoena to discover the identity of an anonymous defendant in an Internet defamation case should be granted unless the party seeking discovery makes a prima facie showing on at least one of his or her claims. The Does (or should we say their EFF and Public Citizen attorneys) argued that this means a request for subpoena is tantamount to a cause of action. But this court held otherwise. Krinsky sets the standard for a motion to quash, but does not set the requirements for the request itself.