A federal appellate court recently held that a well-known celebrity whose tweets caused a litigant’s loss of employment is subject to personal jurisdiction in the plaintiff’s home state, even though the out-of-state celebrity did not know the plaintiff or have any contacts with the plaintiff or his state. ABA Litigation Section leaders have mixed views on the opinion, with some leaders saying the U.S. Supreme Court should revisit pre-social media precedents while others believe the case is consistent with existing precedent where a defendant’s out-of-state conduct is intended to have in-state effects.
In Johnson v. Griffin, the plaintiff was having dinner with his wife when about 40 to 50 noisy teenagers appeared and took prom pictures nearby. The plaintiff asked them to quiet down and one of the teenagers who was wearing a red prom dress confronted him, while that teenager’s boyfriend filmed the interaction. The video captured the plaintiff saying the teenager “looked like an idiot” after being goaded by the teenager’s boyfriend about the teenager’s attire. The boyfriend posted the video of the interaction on his TikTok account, and though TikTok took it down soon after it was posted, others downloaded and reposted it to social media sites, including Twitter. The video clip came to the attention of the plaintiff’s employer, who assured him that the company would stand by him.
That changed, however, after the defendant celebrity retweeted the video clip to her two million followers. The celebrity defendant also added the plaintiff’s name, title, and company to her tweet, with a caption accusing the plaintiff of being homophobic for commenting on a teenager wearing a dress. By tagging the plaintiff’s employer, the defendant’s followers could comment directly and leave their view on the video clip. Before long, and despite the prior assurance from his employer, the plaintiff was terminated from his employment and faced harassment and threats for his alleged homophobia. The plaintiff then filed a lawsuit against the defendant celebrity in the U.S. District Court for the Middle District of Tennessee, alleging tortious interference with his employment, among other claims. The district court dismissed the claims for lack of personal jurisdiction over the California-based defendant, and the plaintiff appealed.
In reversing the district court, the U.S. Court of Appeals for the Sixth Circuit began its analysis noting that, in diversity cases, federal courts look to state law to determine whether they have personal jurisdiction over a defendant. Quoting the U.S. Supreme Court’s decision in Walden v. Fiore, the appellate court reasoned that “substantial connection with the forum state” must be established for a federal court to exercise specific jurisdiction over an out-of-state defendant. Again quoting Walden, the appellate court held that sustained tortious conduct by a defendant satisfies the substantial connection requirement for personal jurisdiction because such conduct is not “random, fortuitous, or attenuated.”
Next, the Griffin court relied on Calder v. Jones for the proposition that the effect of an intentional tort alone may permit a court to exercise personal jurisdiction over a defendant. In Calder, a California actress sued Florida journalists for publishing an allegedly libelous article. The U.S. Supreme Court held that the California federal court could exercise personal jurisdiction over the Florida defendants because their intentional act of publishing the allegedly libelous article expressly targeted the California-based actress. Here, applying Calder, the Griffin court concluded that the defendant “‘undoubtedly knew’” that the “‘focal point’ of her tweets concerned” the plaintiff and a federal court in the plaintiff’s state could exercise personal jurisdiction over the defendant.
Griffin “is part of a nationwide discussion about what Calder—and its focus on the “effects” of a communication—means in the online world where communications effortlessly travel worldwide,” opines Michael P. Lynn, Dallas, TX, cochair of the Litigation Section’s Federal Practice Task Force. Lynn analogized Griffin to a 2022 Court of Appeals for the Fifth Circuit’s denial of a rehearing en banc in Johnson v. Huffington Post, in which a 10–7 divided court ruled in the affirmative against a plaintiff on the issue of whether online news outlets are immune from libel lawsuits in states where their content does not circulate. “The Supreme Court should consider clarifying the law in this area given the age of Calder,” suggests Lynn.
In an opinion concurring in the result, Judge Cole wrote that purposeful availment is the legal theory that permits the lower federal court to exercise jurisdiction over the defendant. Citing precedents from another federal appellate court, Judge Cole noted that purposeful availment is satisfied here because the defendant’s “conduct consisted of two direct communications aimed at the forum state with an alleged intent to cause a consequence there.”
“The legal landscape is still evolving,” states Rebecca Sha, New Orleans, LA, cochair of the Section’s Minority Trial Lawyer Committee, “but expect that social media or online or virtual activity to be treated in a similar manner as more traditional communication, such as physical mail or telephonic,” Sha adds. Agreeing with the concurrence, Gregory R. Hanthorn, Atlanta, GA, cochair of the Federal Practice Task Force, implores litigators faced with the threshold issue of jurisdiction in social media claims to “logically focus upon facts that establish purposeful activity aimed at the forum.”
