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Filed: January 3, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2340
(CA-00-86)
Stanley K. Young,
Plaintiff - Appellee,
versus
New Haven Advocate, et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed December 13, 2002, as follows:
On page 8, first paragraph, line 3 -- the word "Advocate's" is corrected to read "Courant's."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
STANLEY K. YOUNG,
Plaintiff-Appellee,
v.
NEW HAVEN ADVOCATE; GAIL
THOMPSON; CAMILLE JACKSON;
HARTFORD COURANT; BRIAN TOOLAN;
AMY PAGNOZZI,
Defendants-Appellants,
and
MICHAEL LAWLOR; CAROLYN NAH;
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE;
CONNECTICUT POST; RICK SAWYERS;
KEN DIXON,No. 01-2340
Defendants.
ADVANCE PUBLICATIONS,
INCORPORATED; AMERICAN SOCIETY OF
NEWSPAPER EDITORS; ASSOCIATED
PRESS; ASSOCIATION OF ALTERNATIVE
NEWSWEEKLIES; BELO CORPORATION;
BLOOMBERG, L.P.; CENTER FOR
DEMOCRACY & TECHNOLOGY; DAILY
NEWS, L.P.; DOW JONES AND
COMPANY, INCORPORATED; EL DIA,
INCORPORATED; THE E. W. SCRIPPS
COMPANY; THE HEARST CORPORATION;
INVESTIGATIVE REPORTERS AND
EDITORS, INCORPORATED; MAGAZINE
PUBLISHERS OF AMERICA;
------------------------------------------------*
------------------------------------------------*
THE MCCLATCHY COMPANY;
NATIONAL ASSOCIATION OF
BROADCASTERS; NEWSLETTER &
ELECTRONIC PUBLISHERS ASSOCIATION;
NEWSPAPER ASSOCIATION OF AMERICA;
THE NEW YORK TIMES; ONLINE NEWS
ASSOCIATION; THE RADIO-TELEVISION
NEWS DIRECTORS ASSOCIATION; THE
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS; SOCIETY OF
PROFESSIONAL JOURNALISTS; VILLAGE
VOICE MEDIA, INCORPORATED; THE
WASHINGTON POST COMPANY; ZIFF
DAVIS MEDIA, INCORPORATED,
Amici Supporting Appellants.
------------------------------------------------*
Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. Glen M. Williams, Senior District Judge. (CA-00-86)
Argued: June 3, 2002
Decided: December 13, 2002
Before MICHAEL and GREGORY, Circuit Judges, and Bobby R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.
____________________________________________________________
Reversed by published opinion. Judge Michael wrote the opinion, in
which Judge Gregory and Senior Judge Baldock joined.
____________________________________________________________
2
COUNSEL
ARGUED: Robert Douglass Lystad, BAKER & HOSTETLER,
L.L.P., Washington, D.C., for Appellants. Robert Stuart Collins,
FLEMING & COLLINS, P.C., Norton, Virginia, for Appellee. ON
BRIEF: Bruce W. Sanford, Bruce D. Brown, BAKER &
HOSTETLER, L.L.P., Washington, D.C.; Wade W. Massie, PENN,
STUART & ESKRIDGE, Abington, Virginia; Stephanie S. Abrutyn,
TRIBUNE COMPANY, New York, New York, for Appellants. Rob-
ert M. O'Neil, THOMAS JEFFERSON CENTER FOR THE PRO-
TECTION OF FREE EXPRESSION, Charlottesville, Virginia;
George Rutherglen, UNIVERSITY OF VIRGINIA LAW SCHOOL,
Charlottesville, Virginia, for Amici Curiae.
____________________________________________________________
OPINION
MICHAEL, Circuit Judge:
The question in this appeal is whether two Connecticut newspapers
and certain of their staff (sometimes, the "newspaper defendants")
subjected themselves to personal jurisdiction in Virginia by posting
on the Internet news articles that, in the context of discussing the
State of Connecticut's policy of housing its prisoners in Virginia insti-
tutions, allegedly defamed the warden of a Virginia prison. Our recent
decision in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293
F.3d 707 (4th Cir. 2002), supplies the standard for determining a
court's authority to exercise personal jurisdiction over an out-of-state
person who places information on the Internet. Applying that stan-
dard, we hold that a court in Virginia cannot constitutionally exercise
jurisdiction over the Connecticut-based newspaper defendants
because they did not manifest an intent to aim their websites or the
posted articles at a Virginia audience. Accordingly, we reverse the
district court's order denying the defendants' motion to dismiss for
lack of personal jurisdiction.
I.
Sometime in the late 1990s the State of Connecticut was faced with
substantial overcrowding in its maximum security prisons. To allevi-
3
ate the problem, Connecticut contracted with the Commonwealth of
Virginia to house Connecticut prisoners in Virginia's correctional
facilities. Beginning in late 1999 Connecticut transferred about 500
prisoners, mostly African-American and Hispanic, to the Wallens
Ridge State Prison, a "supermax" facility in Big Stone Gap, Virginia.
The plaintiff, Stanley Young, is the warden at Wallens Ridge. Con-
necticut's arrangement to incarcerate a sizeable number of its offend-
ers in Virginia prisons provoked considerable public debate in
Connecticut. Several Connecticut legislators openly criticized the pol-
icy, and there were demonstrations against it at the state capitol in
Hartford.
Connecticut newspapers, including defendants the New Haven
Advocate (the Advocate) and the Hartford Courant (the Courant),
began reporting on the controversy. On March 30, 2000, the Advocate
published a news article, written by one of its reporters, defendant
Camille Jackson, about the transfer of Connecticut inmates to Wallens
Ridge. The article discussed the allegedly harsh conditions at the Vir-
ginia prison and pointed out that the long trip to southwestern Vir-
ginia made visits by prisoners' families difficult or impossible. In the
middle of her lengthy article, Jackson mentioned a class action that
inmates transferred from Connecticut had filed against Warden
Young and the Connecticut Commissioner of Corrections. The
inmates alleged a lack of proper hygiene and medical care and the
denial of religious privileges at Wallens Ridge. Finally, a paragraph
at the end of the article reported that a Connecticut state senator had
expressed concern about the presence of Confederate Civil War mem-
orabilia in Warden Young's office. At about the same time the Cou-
rant published three columns, written by defendant-reporter Amy
Pagnozzi, questioning the practice of relocating Connecticut inmates
to Virginia prisons. The columns reported on letters written home by
inmates who alleged cruelty by prison guards. In one column
Pagnozzi called Wallens Ridge a "cut-rate gulag." Warden Young
was not mentioned in any of the Pagnozzi columns.
On May 12, 2000, Warden Young sued the two newspapers, their
editors (Gail Thompson and Brian Toolan), and the two reporters for
libel in a diversity action filed in the Western District of Virginia. He
claimed that the newspapers' articles imply that he "is a racist who
advocates racism" and that he "encourages abuse of inmates by the
4
guards" at Wallens Ridge. Young alleged that the newspapers circu-
lated the allegedly defamatory articles throughout the world by post-
ing them on their Internet websites.
The newspaper defendants filed motions to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(2) on the ground that the
district court lacked personal jurisdiction over them. In support of the
motions the editor and reporter from each newspaper provided decla-
rations establishing the following undisputed facts. The Advocate is
a free newspaper published once a week in New Haven, Connecticut.
It is distributed in New Haven and the surrounding area, and some of
its content is published on the Internet. The Advocate has a small
number of subscribers, and none of them are in Virginia. The Courant
is published daily in Hartford, Connecticut. The newspaper is distrib-
uted in and around Hartford, and some of its content is published on
the Internet. When the articles in question were published, the Cou-
rant had eight mail subscribers in Virginia. Neither newspaper solicits
subscriptions from Virginia residents. No one from either newspaper,
not even the reporters, traveled to Virginia to work on the articles
about Connecticut's prisoner transfer policy. The two reporters, Jack-
son of the Advocate and Pagnozzi of the Courant, made a few tele-
phone calls into Virginia to gather some information for the articles.
Both interviewed by telephone a spokesman for the Virginia Depart-
ment of Corrections. All other interviews were done with people
located in Connecticut. The two reporters wrote their articles in Con-
necticut. The individual defendants (the reporters and editors) do not
have any traditional contacts with the Commonwealth of Virginia.
They do not live in Virginia, solicit any business there, or have any
assets or business relationships there. The newspapers do not have
offices or employees in Virginia, and they do not regularly solicit or
do business in Virginia. Finally, the newspapers do not derive any
substantial revenue from goods used or services rendered in Virginia.
In responding to the declarations of the editors and reporters, War-
den Young pointed out that the newspapers posted the allegedly
defamatory articles on Internet websites that were accessible to Vir-
ginia residents. In addition, Young provided copies of assorted print-
outs from the newspapers' websites. For the Advocate, Young
submitted eleven pages from newhavenadvocate.com and new-
massmedia.com for January 26, 2001. The two pages from newha-
5
venadvocate.com are the Advocate's homepage, which includes links
to articles about the "Best of New Haven" and New Haven's park
police. The nine pages from newmassmedia.com, a website main-
tained by the publishers of the Advocate, consist of classified adver-
tising from that week's newspapers and instructions on how to submit
a classified ad. The listings include advertisements for real estate rent-
als in New Haven and Guilford, Connecticut, for roommates wanted
and tattoo services offered in Hamden, Connecticut, and for a bassist
needed by a band in West Haven, Connecticut. For the Courant,
Young provided nine pages from hartfordcourant.com and ctnow.com
for January 26, 2001. The hartfordcourant.com homepage character-
izes the website as a "source of news and entertainment in and about
Connecticut." A page soliciting advertising in the Courant refers to
"exposure for your message in this market" in the "best medium in the
state to deliver your advertising message." The pages from
ctnow.com, a website produced by the Courant, provide news stories
from that day's edition of the Courant, weather reports for Hartford
and New Haven, Connecticut, and links to sites for the University of
Connecticut and Connecticut state government. The website promotes
its online advertising as a "source for jobs in Connecticut." The web-
site printouts provided for January 26, 2001, do not have any content
with a connection to readers in Virginia.
The district court denied the newspaper defendants' motions to dis-
miss, concluding that it could exercise personal jurisdiction over them
under Virginia's long-arm statute, Va. Code Ann. § 8.01-328(A)(3),
because "the defendants' Connecticut-based Internet activities consti-
tuted an act leading to an injury to the plaintiff in Virginia." The dis-
trict court also held that the defendants' Internet activities were
sufficient to satisfy the requirements of constitutional due process.
With our permission the newspaper defendants are taking this inter-
locutory appeal. The facts relating to jurisdiction are undisputed, and
the district court's decision that it has personal jurisdiction over these
defendants presents a legal question that we review de novo. See
Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v.
Nolan, 259 F.3d 209, 215 (4th Cir. 2001).
6
II.
A.
A federal court may exercise personal jurisdiction over a defendant
in the manner provided by state law. See ESAB Group, Inc. v. Cen-
tricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997); Fed. R. Civ. P.
4(k)(1)(A). Because Virginia's long-arm statute extends personal
jurisdiction to the extent permitted by the Due Process Clause, see
English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990), "the
statutory inquiry necessarily merges with the constitutional inquiry,
and the two inquiries essentially become one." Stover v. O'Connell
Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996). The question, then,
is whether the defendant has sufficient "minimum contacts with [the
forum] such that the maintenance of the suit does not offend `tradi-
tional notions of fair play and substantial justice.'" Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)). A court may assume power over an out-
of-state defendant either by a proper "finding [of] specific jurisdiction
based on conduct connected to the suit or by [a proper] finding [of]
general jurisdiction." ALS Scan, Inc. v. Digital Serv. Consultants, Inc.,
293 F.3d 707, 711 (4th Cir. 2002). Warden Young argues only for
specific jurisdiction, so we limit our discussion accordingly. When a
defendant's contacts with the forum state "are also the basis for the
suit, those contacts may establish specific jurisdiction." Id. at 712. In
determining whether specific jurisdiction exists, we traditionally ask
(1) whether the defendant purposefully availed itself of the privileges
of conducting activities in the forum state, (2) whether the plaintiff's
claim arises out of the defendant's forum-related activities, and (3)
"whether the exercise of personal jurisdiction over the defendant
would be constitutionally reasonable." Id. at 712. See also Christian
Sci. Bd., 259 F.3d at 216. The plaintiff, of course, has the burden to
establish that personal jurisdiction exists over the out-of-state defen-
dant. Young v. FDIC, 103 F.3d 1180, 1191 (4th Cir. 1997).
B.
We turn to whether the district court can exercise specific jurisdic-
tion over the newspaper defendants, namely, the two newspapers, the
two editors, and the two reporters. To begin with, we can put aside
7
the few Virginia contacts that are not Internet based because Warden
Young does not rely on them. Thus, Young does not claim that the
reporters' few telephone calls into Virginia or the Courant's eight
Virginia subscribers are sufficient to establish personal jurisdiction
over those defendants. Nor did the district court rely on these tradi-
tional contacts.
Warden Young argues that the district court has specific personal
jurisdiction over the newspaper defendants (hereafter, the "newspa-
pers") because of the following contacts between them and Virginia:
(1) the newspapers, knowing that Young was a Virginia resident,
intentionally discussed and defamed him in their articles, (2) the
newspapers posted the articles on their websites, which were accessi-
ble in Virginia, and (3) the primary effects of the defamatory state-
ments on Young's reputation were felt in Virginia. Young emphasizes
that he is not arguing that jurisdiction is proper in any location where
defamatory Internet content can be accessed, which would be any-
where in the world. Rather, Young argues that personal jurisdiction
is proper in Virginia because the newspapers understood that their
defamatory articles, which were available to Virginia residents on the
Internet, would expose Young to public hatred, contempt, and ridicule
in Virginia, where he lived and worked. As the district court put it,
"[t]he defendants were all well aware of the fact that the plaintiff was
employed as a warden within the Virginia correctional system and
resided in Virginia," and they "also should have been aware that any
harm suffered by Young from the circulation of these articles on the
Internet would primarily occur in Virginia."
Young frames his argument in a way that makes one thing clear:
if the newspapers' contacts with Virginia were sufficient to establish
personal jurisdiction, those contacts arose solely from the newspa-
pers' Internet-based activities. Recently, in ALS Scan we discussed
the challenges presented in applying traditional jurisdictional princi-
ples to decide when "an out-of-state citizen, through electronic con-
tacts, has conceptually `entered' the State via the Internet for
jurisdictional purposes." ALS Scan, 293 F.3d at 713. There, we held
that "specific jurisdiction in the Internet context may be based only
on an out-of-state person's Internet activity directed at [the forum
state] and causing injury that gives rise to a potential claim cognizable
in [that state]." Id. at 714. We noted that this standard for determining
8
specific jurisdiction based on Internet contacts is consistent with the
one used by the Supreme Court in Calder v. Jones, 465 U.S. 783
(1984). ALS Scan, 293 F.3d at 714. Calder, though not an Internet
case, has particular relevance here because it deals with personal
jurisdiction in the context of a libel suit. In Calder a California actress
brought suit there against, among others, two Floridians, a reporter
and an editor who wrote and edited in Florida a National Enquirer
article claiming that the actress had a problem with alcohol. The
Supreme Court held that California had jurisdiction over the Florida
residents because "California [was] the focal point both of the story
and of the harm suffered." Calder, 465 U.S. at 789. The writers' "ac-
tions were expressly aimed at California," the Court said, "[a]nd they
knew that the brunt of [the potentially devastating] injury would be
felt by [the actress] in the State in which she lives and works and in
which the National Enquirer has its largest circulation," 600,000 cop-
ies. Calder, 465 U.S. at 789-90.
Warden Young argues that Calder requires a finding of jurisdiction
in this case simply because the newspapers posted articles on their
Internet websites that discussed the warden and his Virginia prison,
and he would feel the effects of any libel in Virginia, where he lives
and works. Calder does not sweep that broadly, as we have recog-
nized. For example, in ESAB Group, Inc. v. Centricut, Inc., 126 F.3d
617, 625-26 (4th Cir. 1997), we emphasized how important it is in
light of Calder to look at whether the defendant has expressly aimed
or directed its conduct toward the forum state. We said that
"[a]lthough the place that the plaintiff feels the alleged injury is
plainly relevant to the [jurisdictional] inquiry, it must ultimately be
accompanied by the defendant's own [sufficient minimum] contacts
with the state if jurisdiction . . . is to be upheld." Id. at 626. We thus
had no trouble in concluding in ALS Scan that application of Calder
in the Internet context requires proof that the out-of-state defendant's
Internet activity is expressly targeted at or directed to the forum state.
ALS Scan, 293 F.3d at 714. In ALS Scan we went on to adapt the tra-
ditional standard (set out in part II.A., supra ) for establishing specific
jurisdiction so that it makes sense in the Internet context. We "con-
clude[d] that a State may, consistent with due process, exercise judi-
cial power over a person outside of the State when that person (1)
directs electronic activity into the State, (2) with the manifested intent
of engaging in business or other interactions within the State, and (3)
9
that activity creates, in a person within the State, a potential cause of
action cognizable in the State's courts." ALS Scan, 293 F.3d at 714.
When the Internet activity is, as here, the posting of news articles
on a website, the ALS Scan test works more smoothly when parts one
and two of the test are considered together. We thus ask whether the
newspapers manifested an intent to direct their website content -
which included certain articles discussing conditions in a Virginia
prison - to a Virginia audience. As we recognized in ALS Scan, "a
person's act of placing information on the Internet" is not sufficient
by itself to "subject[ ] that person to personal jurisdiction in each
State in which the information is accessed." Id. at 712. Otherwise, a
"person placing information on the Internet would be subject to per-
sonal jurisdiction in every State," and the traditional due process prin-
ciples governing a State's jurisdiction over persons outside of its
borders would be subverted. Id.See also GTE New Media Servs. Inc.
v. Bellsouth Corp., 199 F.3d 1343, 1350 (D.C. Cir. 2000). Thus, the
fact that the newspapers' websites could be accessed anywhere,
including Virginia, does not by itself demonstrate that the newspapers
were intentionally directing their website content to a Virginia audi-
ence. Something more than posting and accessibility is needed to "in-
dicate that the [newspapers] purposefully (albeit electronically)
directed [their] activity in a substantial way to the forum state," Vir-
ginia. Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th
Cir. 1998) (quotation omitted). The newspapers must, through the
Internet postings, manifest an intent to target and focus on Virginia
readers.
We therefore turn to the pages from the newspapers' websites that
Warden Young placed in the record, and we examine their general
thrust and content. The overall content of both websites is decidedly
local, and neither newspaper's website contains advertisements aimed
at a Virginia audience. For example, the website that distributes the
Courant, ctnow.com, provides access to local (Connecticut) weather
and traffic information and links to websites for the University of
Connecticut and Connecticut state government. The Advocate's web-
site features stories focusing on New Haven, such as one entitled
"The Best of New Haven." In sum, it appears that these newspapers
maintain their websites to serve local readers in Connecticut, to
expand the reach of their papers within their local markets, and to
10
provide their local markets with a place for classified ads. The web-
sites are not designed to attract or serve a Virginia audience.
We also examine the specific articles Young complains about to
determine whether they were posted on the Internet with the intent to
target a Virginia audience. The articles included discussions about the
allegedly harsh conditions at the Wallens Ridge prison, where Young
was warden. One article mentioned Young by name and quoted a
Connecticut state senator who reported that Young had Confederate
Civil War memorabilia in his office. The focus of the articles, how-
ever, was the Connecticut prisoner transfer policy and its impact on
the transferred prisoners and their families back home in Connecticut.
The articles reported on and encouraged a public debate in Connecti-
cut about whether the transfer policy was sound or practical for that
state and its citizens. Connecticut, not Virginia, was the focal point
of the articles. Cf. Griffis v. Luban, 646 N.W.2d 527, 536 (Minn.
2002) ("The mere fact that [the defendant, who posted allegedly
defamatory statements about the plaintiff on the Internet] knew that
[the plaintiff] resided and worked in Alabama is not sufficient to
extend personal jurisdiction over [the defendant] in Alabama, because
that knowledge does not demonstrate targeting of Alabama as the
focal point of the . . . statements.").
The facts in this case establish that the newspapers' websites, as
well as the articles in question, were aimed at a Connecticut audience.
The newspapers did not post materials on the Internet with the mani-
fest intent of targeting Virginia readers. Accordingly, the newspapers
could not have "reasonably anticipate[d] being haled into court [in
Virginia] to answer for the truth of the statements made in their arti-
cle[s]." Calder, 465 U.S. at 790 (quotation omitted). In sum, the
newspapers do not have sufficient Internet contacts with Virginia to
permit the district court to exercise specific jurisdiction over them.*
____________________________________________________________
* Because the newspapers did not intentionally direct Internet activity
to Virginia, and jurisdiction fails on that ground, we have no need to
explore the last part of the ALS Scan inquiry, that is, whether the chal-
lenged conduct created a cause of action in Virginia. See ALS Scan, 293
F.3d at 714.
11
We reverse the order of the district court denying the motions to
dismiss for lack of personal jurisdiction made by the New Haven
Advocate, Gail Thompson (its editor), and Camille Jackson (its
reporter) and by the Hartford Courant, Brian Toolan (its editor), and
Amy Pagnozzi (its reporter).
REVERSED
12