Johnson v. TheHuffingtonPost.com, Inc.

32 F.4th 488 (Mem)

Charles JOHNSON, Plaintiff—Appellant,

v.THEHUFFINGTONPOST.COM, INCORPORATED, Defendant—Appellee.

No. 21-20022

United States Court of Appeals, Fifth Circuit.

FILED April 27, 2022

Joseph D. Sibley, IV, Camara & Sibley, L.L.P., Austin, TX, for Plaintiff-Appellant.

Jean-Paul Jassy, William T. Um, Jassy Vick Carolan, L.L.P., Los Angeles, CA, Marc Aaron Fuller, Vinson & Elkins, L.L.P., Dallas, TX, Patrick W. Mizell, Vinson & Elkins, L.L.P., Houston, TX, for Defendant-Appellee.

Charles Edward Cowan, John P. Sneed, Attorney, Wise Carter Child & Caraway, P.A., Jackson, MS, for Amicus Curiae Derrick C. Evans.

Marc Randazza, Randazza Legal Group, P.L.L.C., Las Vegas, NV, Jay Marshall Wolman, Randazza Legal Group, P.L.L.C., Hartford, CT, for Amicus Curiae AMA Multimedia, L.L.C.

Before King, Smith, and Haynes, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel rehearing ( 5TH CIR. R. 35 I.O.P.), the petition for panel rehearing is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing ( FED. R. APP. P. 35 and 5TH CIR. R. 35 ).

In the en banc poll, 7 judges voted in favor of rehearing (Judges Elrod, Haynes, Costa, Willett, Engelhardt, Oldham, and Wilson), and 10 voted against rehearing (Chief Judge Richman and Judges Jones, Smith, Stewart, Dennis, Southwick, Graves, Higginson, Ho, and Duncan).

Jennifer Walker Elrod, Circuit Judge, joined by Haynes, Engelhardt, and Wilson, Circuit Judges, dissenting from the denial of en banc rehearing:

Does the Constitution immunize online news-media outlets from libel lawsuits in states in which they circulate their content online? The panel opinion in this case held that it does. I am not so sure. The Supreme Court has held that a print publication "aimed at a nationwide audience" is not immune from defamation actions in any state where it has "regular circulation." Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 773–74, 781, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). Are online publications to be treated differently? We should have reheard this case en banc to reassess this question of exceptional importance.

We should also have reheard this case in light of the circuit split that the panel opinion begat. None of our sister circuits have "restricted application of Keeton to print publications" like the panel majority opinion does in this case. Johnson v. TheHuffingtonPost.com, Inc. , 21 F.4th 314, 330 (5th Cir. 2021) (Haynes, J., dissenting). In fact, decisions of the Seventh and Ninth Circuits have relied heavily on Keeton to uphold personal jurisdiction over companies whose Internet-driven business models evince intent to avail themselves of the privilege of doing business in the states in which they were sued. See uBID, Inc. v. GoDaddy Grp., Inc. , 623 F.3d 421, 427–30 (7th Cir. 2010) ; Mavrix Photo, Inc. v. Brand Techs., Inc. , 647 F.3d 1218, 1229–31 (9th Cir. 2011). The Fourth Circuit recently held similarly. See UMG Recordings, Inc. v. Kurbanov , 963 F.3d 344, 352–55 (4th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1057, 208 L.Ed.2d 525 (2021). The panel opinion in this case broke with these decisions, cabining Keeton to the almost-bygone world of print-only media.

I.

In January of 2019, the Huffington Post published a headline on its website that labeled plaintiff–appellant Charles ("Chuck") Johnson a "Holocaust-Denying White Nationalist." Johnson sued HuffPost for libel. Characterizing the piece as a fake-news "hit job" by a "notoriously left-leaning" news outlet, Johnson adamantly repudiated the positions that HuffPost had publicly attributed to him and sought damages in excess of $1 million.

Johnson, a Texan, filed his complaint with the United States District Court for the Southern District of Texas. To establish the court's power to hear the case, Johnson alleged several interrelated contacts tying HuffPost—a Delaware corporation headquartered in New York—to Texas: HuffPost's online publication and its allegedly libelous article are freely available in Texas, where Johnson resides and where the article allegedly caused him reputational injury. The national media outlet "derives substantial revenue" in the course of "servicing the Texas market through [its] [w]ebsite." It "tracks the location and activities of Texas residents on [its] [w]ebsite thereby enabling targeted advertising to Texas residents that generate substantial revenue." And it has contracted "with advertisers in Texas to advertise on its [w]ebsite" and run ads on its site that are "geared to the Texas market."

HuffPost moved to dismiss for lack of personal jurisdiction, and the district court granted the motion. Our court's panel majority opinion affirmed, holding that none of these alleged contacts sufficed to empower a Texas federal court to hear this libel case against HuffPost. Johnson , 21 F.4th at 325. The opinion reasons that Keeton cannot be "woodenly appl[ied] ... to [I]nternet publications" because "websites are different" than print publications. Id. Johnson sought rehearing of his case en banc , which, regrettably, today we deny.

II.

"The analysis applicable to a case involving jurisdiction based on the Internet should not be different at its most basic level from any other personal jurisdiction case." Admar Int'l, Inc. v. Eastrock, L.L.C. , 18 F.4th 783, 786 (5th Cir. 2021) (quoting Pervasive Software, Inc. v. Lexware GmbH & Co. KG , 688 F.3d 214, 226–27 (5th Cir. 2012) ). The panel majority opinion gives lip-service to this key principle, but it swiftly dismisses Johnson's reliance on Keeton simply because "websites are different ." Johnson , 21 F.4th at 325 (emphasis added); id. at 330–31 (Haynes, J., dissenting). The panel opinion thus bifurcates the law of specific jurisdiction over defamation actions: we now have one rule for print publications and a new special rule for web publications. This approach plainly conflicts with our professed application of the same law to the Internet as to the material world.

A.

This case turns on purposeful availment. The central question is this: what proves a publication's purposeful availment through cyberspace? In Johnson's view, HuffPost's online circulation of its content (including the disputed article), considered in light of its ad-driven business model, shows that the company intended to avail itself of the Texas market. The panel majority opinion says that Johnson must show something more: namely, that HuffPost specifically "aimed the alleged libel at Texas." Id. at 320–21 (majority opinion). As Judge Haynes meticulously explained in her panel dissent, we apply the Supreme Court's instructions in Keeton when a defamation defendant is a publication. See id. at 327–30 (Haynes, J., dissenting); Fielding v. Hubert Burda Media, Inc. , 415 F.3d 419, 425 (5th Cir. 2005) ; cf. Calder v. Jones , 465 U.S. 783, 789–90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ( Keeton 's companion case furnishing the "aiming" test for author–editor defendants).

In Keeton v. Hustler , the Supreme Court instructed us how to apply the purposeful availment requirement to defamation lawsuits against publications. Keeton held that a New Hampshire federal court had personal jurisdiction over Hustler, an Ohio-domiciled magazine with its principal place of business in California, to hear a libel lawsuit brought by a New Yorker.¹

465 U.S. at 781, 104 S.Ct. 1473. Hustler's only contact with New Hampshire was its circulation of 10,000–15,000 magazines (containing the alleged libel) in that state. Id. at 772, 104 S.Ct. 1473. But that was sufficient for specific jurisdiction over Ms. Keeton's libel suit. It mattered not a whit that the alleged libel had nothing to do with New Hampshire besides the mere fact of its circulation there. Id. And why? Because circulation itself showed that Hustler "continuously and deliberately exploited the New Hampshire market" such that "it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine." Id. at 781, 104 S.Ct. 1473 (citing World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297–98, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). The bottom line is this: for a publishing company to purposefully avail itself of a state's marketplace, Keeton says its publication simply needs to be in "regular circulation" there. Id. at 773–74, 104 S.Ct. 1473.

The Internet only presents a new twist for the old test: how do we know that a defendant publishing company continuously and deliberately exploited the forum state's market when its publication only ‘circulates’ by virtue of the Internet's universal accessibility? The panel majority opinion in this case holds that HuffPost's online circulation cannot constitute purposeful availment because Texans act unilaterally in visiting huffpost.com. Johnson , 21 F.4th at 320–21. And as for HuffPost's geolocation tracking, Texan advertisers, and ads targeting Texans? "[I]rrelevant," says the panel majority opinion; "Johnson's libel claim arises from the story declaring him a white-nationalist Holocaust denier"—not HuffPost's sale of ads, the citizenship of its advertising counterparties, or the ads themselves. Johnson , 21 F.4th at 320–21.

That is all true. Third parties' unilateral activities do not create forum contacts for an unwitting defendant, see Hanson v. Denckla , 357 U.S. 235, 253–54, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and a defendant's own forum contacts that are unrelated to the lawsuit itself are insufficient to support specific jurisdiction, see Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct. , ––– U.S. ––––, 141 S. Ct. 1017, 1026, 209 L.Ed.2d 225 (2021). The problem, though, is that the panel majority opinion's blinkered analysis did not put the puzzle pieces together. It did not consider HuffPost's online circulation in light of its ad-driven business model. As a...