Blumenthal v. Drudge

• Citation: 992 F.Supp. 44
• Decision Date: 22 April 1998
• Docket Number: No. CIV.A. 97-1968 PLF.,CIV.A. 97-1968 PLF.
• Parties: Sidney BLUMENTHAL and Jacqueline Jordan Blumenthal, Plaintiffs, v. Matt DRUDGE and America Online, Inc., Defendants.
• Court: U.S. District Court — District of Columbia

992 F.Supp. 44

Sidney BLUMENTHAL and Jacqueline Jordan Blumenthal, Plaintiffs, v. Matt DRUDGE and America Online, Inc., Defendants.

No. CIV.A. 97-1968 PLF.

United States District Court, District of Columbia.

April 22, 1998.

COPYRIGHT MATERIAL OMITTED

William Alden McDaniel, Jr., McDaniel & Marsh, Baltimore, MD, for Plaintiffs.

Jonathan Walker Emord, Emord & Assoc., P.C., Washington, DC, for Matt Drudge.

Patrick Joseph Carome, John Adolphus Payton, Jr., Wilmer, Cutler & Pickering, Washington, DC, for America Online, Inc.

OPINION

PAUL L. FRIEDMAN, District Judge.

This is a defamation case revolving around a statement published on the Internet by defendant Matt Drudge. On August 10, 1997, the following was available to all having access to the Internet:

The DRUDGE REPORT has learned that top GOP operatives who feel there is a double-standard of only reporting republican shame believe they are holding an ace card: New White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up.

The accusations are explosive.

There are court records of Blumenthal's violence against his wife, one influential republican, who demanded anonymity, tells the DRUDGE REPORT.

If they begin to use [Don] Sipple and his problems against us, against the Republican Party ... to show hypocrisy, Blumenthal would become fair game. Wasn't it Clinton who signed the Violence Against Women Act?

[There goes the budget deal honeymoon.] One White House source, also requesting anonymity, says the Blumenthal wife-beating allegation is a pure fiction that has been created by Clinton enemies. [The First Lady] would not have brought him in if he had this in his background, assures the wellplaced staffer. This story about Blumenthal has been in circulation for years.

Last month President Clinton named Sidney Blumenthal an Assistant to the President as part of the Communications Team. He's brought in to work on communications strategy, special projects themeing — a newly created position.

Every attempt to reach Blumenthal proved unsuccessful.

Complaint, Ex. 4.

Currently before this Court are a motion for summary judgment filed by defendant America Online, Inc. ("AOL") and a motion to dismiss or transfer for lack of personal jurisdiction filed by defendant Matt Drudge. Upon consideration of the papers filed by the parties and the oral arguments of counsel, the Court concludes that AOL's motion should be granted and Drudge's motion should be denied.

I. BACKGROUND

Plaintiffs Sidney Blumenthal and Jacqueline Jordan Blumenthal are citizens of the District of Columbia and have continuously lived in the District since 1985. Complaint ¶¶ 1-2, 12. Sidney Blumenthal works in the White House as an Assistant to the President of the United States. His first day of work as Assistant to the President was Monday, August 11, 1997, the day after the publication of the alleged defamatory statement. Jacqueline Jordan Blumenthal, Sidney Blumenthal's wife, also works in the White House as Director of the President's Commission On White House Fellowships. Complaint ¶¶ 13, 16-17.

Defendant Matt Drudge, a Takoma Park, Maryland native, is a resident of the State of California, where he has lived continuously since 1987. Complaint, Ex. 8; Drudge Motion to Dismiss ("Drudge Motion"), Declaration of Matt Drudge ("Drudge Decl. I") ¶ 2.¹ In early 1995, defendant Drudge created an electronic publication called the Drudge Report, a gossip column focusing on gossip from Hollywood and Washington, D.C. Transcript of March 11, 1998 Motions Hearing ("Hearing Tr.") at 41. Mr. Drudge's base of operations for writing, publishing and disseminating the Drudge Report has been an office in his apartment in Los Angeles, California. Drudge Decl. I ¶¶ 2-4.

Access to defendant Drudge's world wide web site is available at no cost to anyone who has access to the Internet at the Internet address of "www.drudgereport.com." Drudge Decl. I ¶ 9. The front page of the web site contains the logo "Drudge Report." Defendant Drudge has also placed a hyperlink on his web site that, when activated, causes the most recently published edition of the Drudge Report to be displayed. Id.² The web site also contains numerous hyperlinks to other on-line news publications and news articles that may be of interest to readers of the Drudge Report. Id. In addition, during the time period relevant to this case, Drudge had developed a list of regular readers or subscribers to whom he e-mailed each new edition of the Drudge Report. Drudge Decl. I ¶¶ 6-7. By March 1995, the Drudge Report had 1,000 e-mail subscribers, Drudge Decl. I ¶ 8; and plaintiffs allege that by 1997 Drudge had 85,000 subscribers to his e-mail service. Complaint ¶ 47.

In late 1996, defendant Drudge entered into a six-month licensing agreement with the publisher of "Wired" magazine. Under the agreement, the publisher of "Wired" had the right to receive and display future editions of the Drudge Report in "Hotwired," a new electronic Internet publication. In exchange, defendant Drudge received a bi-weekly royalty payment. In addition to the publication of the Drudge Report in "Hotwired," defendant Drudge continued to distribute each new edition via e-mail to his subscribers and via his world wide web site. Drudge Decl. I ¶¶ 11-12.

In late May or early June of 1997, at approximately the time when the "Wired" licensing agreement expired, defendant Drudge entered into a written license agreement with AOL.³ The agreement made the Drudge Report available to all members of AOL's service for a period of one year. In exchange, defendant Drudge received a flat monthly "royalty payment" of $3,000 from AOL. During the time relevant to this case, defendant Drudge has had no other source of income. Drudge Decl. I ¶¶ 13-14. Under the licensing agreement, Drudge is to create, edit, update and "otherwise manage" the content of the Drudge Report, and AOL may "remove content that AOL reasonably determine[s] to violate AOL's then standard terms of service." AOL Mem. at 7; see Exhibit C to Licensing Agreement ¶ I, Ex. A to Jennings Decl. Drudge transmits new editions of the Drudge Report by e-mailing them to AOL. AOL then posts the new editions on the AOL service. AOL Mem., Declaration of Matt Drudge ("Drudge Decl. II") ¶ 17; AOL Mem. at 9. Drudge also has continued to distribute each new edition of the Drudge Report via e-mail and his own web site. Drudge Decl. I ¶ 16; Hearing Tr. at 41-42.

Late at night on the evening of Sunday, August 10, 1997 (Pacific Daylight Time), defendant Drudge wrote and transmitted the edition of the Drudge Report that contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from Los Angeles, California by e-mail to his direct subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. He then transmitted the text but not the headline to AOL, which in turn made it available to AOL subscribers. Drudge Decl. I ¶¶ 15, 16, 19.⁴

After receiving a letter from plaintiffs' counsel on Monday, August 11, 1997, Complaint, Ex. 6, defendant Drudge retracted the story through a special edition of the Drudge Report posted on his web site and e-mailed to his subscribers. Drudge Decl. I ¶¶ 17-19. At approximately 2:00 a.m. on Tuesday, August 12, 1997, Drudge e-mailed the retraction to AOL which posted it on the AOL service. Drudge Decl. I ¶ 19; AOL Mem. at 12.⁵ Defendant Drudge later publicly apologized to the Blumenthals. Drudge Decl. I ¶ 20; Complaint, Ex. 6 (Howard Kurtz, Blumenthals Get Apology, Plan Lawsuit: Web Site Retracts Story on Clinton Aide, Washington Post, August 11, 1997, at A 11).

II. AOL's MOTION FOR SUMMARY JUDGMENT

A. The Internet

"The Internet is a unique and wholly new medium of worldwide human communication." Reno v. American Civil Liberties Union, ___ U.S. ___, ___, 117 S.Ct. 2329, 2334, 138 L.Ed.2d 874 (1997).⁶ It enables people to communicate with one another with unprecedented speed and efficiency and is rapidly revolutionizing how people share and receive information. As Congress recognized in the Communications Decency Act of 1996, "the rapidly developing array of Internet and other interactive computer services ... represent an extraordinary advance in the availability of educational and informational resources to our citizens." 47 U.S.C. § 230(a)(1). As one court has noted:

The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps "no there there," the "there" is everywhere where there is Internet access. When business is transacted over a computer network via a Web-site accessed by a computer in Massachusetts, it takes place as much in Massachusetts, literally or figuratively, as it does anywhere.

Digital Equipment Corp. v. Altavista Technology, Inc., 960 F.Supp. 456, 462 (D.Mass. 1997).⁷

The near instantaneous possibilities for the dissemination of information by millions of different information providers around the world to those with access to computers and thus to the Internet have created ever-increasing opportunities for the exchange of information and ideas in "cyberspace."⁸ This information revolution has also presented unprecedented challenges relating to rights of privacy and reputational rights of individuals, to the control of obscene and pornographic materials, and to competition among journalists and news organizations for instant news, rumors and other information that is communicated so quickly that it is too often unchecked and unverified. Needless to say, the legal rules that will govern this new medium are just beginning to take shape.

B. Communications Decency Act of 1996, Section 230

In February of 1996, Congress made an effort to deal with some of these challenges in enacting the Communications Decency Act of 1996. While various policy options were open to the Congress, it chose to ...