Personal Jurisdiction and the Internet: Waiting for the Other Shoe to Drop on First Amendment Concerns - Brian E. Daughdrill

• Citation: Vol. 51 No. 3
• Publication year: 2000

Comment

Personal Jurisdiction and the Internet: Waiting for the Other Shoe to Drop on First Amendment Concerns

I. Introduction

Believing that First Amendment concerns already receive sufficient protection from any "chilling effect," the Supreme Court has held that personal jurisdiction analysis should not contain additional levels of scrutiny in speech-oriented cases.¹ Reasoning that the "actual malice" requirement for public figures enunciated in New York Times, Inc. v. Sullivan² was sufficient protection, the Court has been content to analyze personal jurisdiction over nonresident defendants within the established but "imprecise inquiry,"³ even when the defendant's speech or expression may be penalized by a claim for damages.

Enter Internet-based contacts. Courts attempting to impose traditional personal jurisdiction analysis on Internet-related contacts have no guidance from the Supreme Court and continue to reach inconsistent results as they attempt to force territorial-based analysis onto a one-dimensional universe lacking any concept of boundaries, territories, or other physical properties. A "sliding scale" model proposed by a district court in Pennsylvania in 1997⁴ has been cited with approval in most circuits.⁵

The sliding scale model was crafted to deal primarily with commercial interaction via the Internet, and it contains imprecise terms that are often misapplied by other courts attempting to use it. In the rush to force the Internet into traditional analysis, courts must pause to clarify the terms "interactive" and "passive" lest they pull unsuspecting town criers into foreign courts. To the extent "interactivity" is denned by commercial precedents, freedom of speech is threatened by litigation that speakers will have to defend in unpredictable foreign jurisdictions—an outcome that will produce a chilling effect on speech, regardless of existing First Amendment jurisprudence.

If, as in Blumenthal v. Drudge,⁶ a court imprecisely characterizes contacts with the forum and assumes personal jurisdiction based on traditional, geographical-based precedents rather than a careful factual analysis, publishers will be required to litigate claims fully prior to appealling them rather than having them dismissed for lack of personal jurisdiction early in the process. Incorrect characterization of Internet-based contacts threatens a collision between personal jurisdiction and the First Amendment that will destroy the unique platform of free speech provided by the Internet. "[T]he Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs . . . are significantly lower than those associated with use of other forms of mass communication, such as television, radio, newspapers, and magazines."⁷ Additionally, "the Internet is an especially attractive means for not-for-profit entities or public interest groups to reach their desired audiences."⁸ It is not for the commercial publisher that this concern is voiced, but for the lone voice crying out in the wilderness. Rather than risk being subject to worldwide jurisdiction, the lone voice must be stilled unless the sliding scale is refined to protect what has been described by Congress as "an extraordinary advance in the availability of educational and informational resources to our citizens."⁹ Individuals will be "chilled" from publishing on the Internet because a foreign plaintiff will be able to hale them into court in jurisdictions unknown, regardless of whether the analysis from Sullivan might later extract them from the clutches of a jury. "Uncertainty about the jurisdictional reach of territorially denned courts over the trans-territorial Internet may already be chilling Internet participation."¹⁰

Section II of this Comment reviews the evolution of traditional personal jurisdiction analysis and then traces the foray into Internet-contact analysis. Section III explains the sliding scale model that has received such wide acceptance and reviews various courts' findings upholding or declining jurisdiction based on Internet contacts. Section IV reviews the analysis in Blumenthal v. Drudge, a case that incompletely categorized Web contacts and identifies three critical areas on which courts should focus their analysis. Section V attempts to clarify the ambiguous points on the sliding scale with which courts are struggling. Finally, Section VI applies the clarified scale to Blumenthal to demonstrate that application of the clarified scale would yield available forums while simultaneously affording greater litigation protection for Internet speakers.

II. History of Personal Jurisdiction

Personal jurisdiction, as any law student will relate, is one of the critical "three-rings,"¹¹ along with subject matter jurisdiction and venue, that must be satisfied before a court may exercise its power over a nondomiciliary defendant.

A. Personal Jurisdiction—Pennoyer to Asahi

Historically, personal jurisdiction was based on raw power—the power a court exercised over the person or property within its territorial jurisdiction. A person's "presence within the territorial jurisdiction of court was prerequisite to [the court's] rendition of a judgment."¹² The notion of physical presence gave way in the middle of the twentieth century to a contacts-based analysis for in personam personal jurisdiction.¹³ To be amenable to suit, a nonconsenting, nondomiciliary defendant who cannot be served within the forum must have "certain minimum contacts" such that a suit does not offend " 'traditional notions of fair play and substantial justice.' "¹⁴ General jurisdiction over all claims is found when the defendant has continuous contacts with a state that are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities."¹⁵ The more limited concept of specific jurisdiction asserts jurisdiction one claim at a time based on claim-relatedness.¹⁶ When the defendant has purposefully availed itself of the privilege of conducting beneficial activities within a state, it should be amenable to suit in that state for claims arising out of those specific contacts.¹⁷ The contacts that should be analyzed for specific jurisdiction are those demonstrating the defendant's enjoyment of the "benefits and protection of the laws of [the] state."¹⁸ These tests cannot be "simply mechanical or quantitative," but, for due process requirements, must depend on the quality and nature of the activity.¹⁹

In the late 1950s, the Court began to constrict the assertion of personal jurisdiction by limiting the types of contacts sufficient to support the assertion of specific jurisdiction.²⁰ The Court noted that "technological progress has increased the flow of commerce between States" and that "progress in communication and transportation has made the defense of a suit in a foreign tribunal less burdensome."²¹ Nevertheless, the Court held that "it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts."²² The unilateral activity of someone with whom the nonresident defendant has dealings "cannot satisfy the requirement of contact with the forum State."²³ To subject a nonresident defendant to jurisdiction, "there [must] be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."²⁴

In World-Wide Volkswagen Corp. v. Woodson,²⁵ the Court thoroughly analyzed the foreseeability necessary for the assertion of personal jurisdiction and held that, if personal jurisdiction was based on the foreseeability of a product entering the forum, "amenability to suit would travel with the chattel."²⁶ The Court then defined the foreseeability that was critical as the defendant's conduct and connection with the forum being such that it was reasonably foreseeable that he would be haled into court within the forum.²⁷ In Helicopteros Nacionales de Colombia v. Hall,²⁸ the Court addressed whether defendant's purchases and related trips to the forum were sufficient to constitute purposeful availment.²⁹ In Helicopteros the Court held that "mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction . . . in a cause of action not related to those purchase transactions."³⁰ Neither sending personnel into the forum in connection with the equipment purchases nor the training of those parties there to use the equipment "enhanced the nature of [defendant's] contacts."³¹

In two subsequent cases in the middle to late 1980s, the Court retained its restrictions on the contacts that render an individual amenable to suit, but added a second layer of "reasonableness" to the analysis. In Burger King Corp. v. Rudzewicz³² and Asahi Metal Industry Co. v. Superior Court of California,³³ the Court further defined the requirements for personal jurisdiction. First, in Burger King the Court held that "parties who 'reach out beyond one state and create continuing relationships and obligations with citizens of another state' are subject to regulation . . . in the other State."³⁴ Individuals must ' "purposefully derive benefit[s]' from their interstate activites."³⁵ Once minimum contacts have been established, the contacts must be analyzed to determine whether, in light of other factors, "the assertion of personal jurisdiction would comport with 'fair play and substantial justice.' "³⁶ Other factors that courts should consider include (1) '"the burden on the defendant,' " (2) ' "the forum State's interest in adjudicating the dispute'," (3) ' "the plaintiff's interest in obtaining convenient and effective relief," (4) ' "the interstate judicial system's interest in obtaining the most efficient resolution of the controversies,' " and (5) ' "the...