Johnson v. TheHuffingtonPost.com, Inc.

• Citation: 21 F.4th 314
• Decision Date: 23 December 2021
• Docket Number: No. 21-20022,21-20022
• Parties: Charles JOHNSON, Plaintiff—Appellant, v. THEHUFFINGTONPOST.COM, INC., Defendant—Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

21 F.4th 314

Charles JOHNSON, Plaintiff—Appellant,

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

No. 21-20022

United States Court of Appeals, Fifth Circuit.

FILED December 23, 2021

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.

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Charles Johnson says the Huffington Post ("HuffPost") libeled him by calling him a white nationalist and a Holocaust denier. He sued HuffPost in Texas. HuffPost is not a citizen of Texas and has no ties to the state. But its website markets ads, merchandise, and ad-free experiences to all comers.

We must decide whether those features of HuffPost's site grant Texas specific personal jurisdiction over HuffPost as to Johnson's libel claim. They do not, so we affirm the dismissal and deny jurisdictional discovery.

I.

HuffPost is a website that publishes online articles and commentary. It's perhaps best known for its political coverage.

About three years ago, HuffPost reported that Johnson had met with two congressmen in Washington, D.C. The story identified Johnson as a "noted Holocaust denier and white nationalist." The story said nothing about Texas, nor did it rely on sources based in Texas or recount conduct that occurred in Texas.

Displeased with the portrayal, Johnson sued HuffPost for libel in the Southern District of Texas. At first, Johnson based jurisdiction on his Texas citizenship and said that the libel had occurred in Texas. But HuffPost is a citizen of Delaware and New York; it has no physical ties to Texas; it has no office in Texas, employs no one in Texas, and owns no property there.

To surmount that barrier, Johnson's amended complaint stressed HuffPost's online links to Texas. Johnson calls four to our attention. First , HuffPost's website, which displays the alleged libel, is visible in Texas. Second , HuffPost sells an ad-free experience¹ and merchandise to everyone, including Texans. Third , advertisers from Texas have contracted with HuffPost to show ads on the site. And fourth , HuffPost collects information about its viewers, including their location, to enable advertisers to show them relevant ads. All those contacts, Johnson avers, establishes that HuffPost "has purposefully availed itself of the privileges of doing business in Texas."

HuffPost moved to dismiss for want of personal jurisdiction. In a terse opinion, the district court granted that motion, noting that the story did not concern Texas, did not use Texas sources, and was not "directed at Texas residents more than residents from other states."

Johnson appeals. He urges that the district court erred by looking to the libel's effects in the forum state rather than to the features of HuffPost's website, which he says support jurisdiction in Texas. In the alternative, Johnson seeks discovery to support his jurisdictional claims.

HuffPost restates that it has no physical ties to Texas and that the story about Johnson does not target Texas or rely on Texas in any way. It also points out that Johnson's injury arises only from the story's visibility in the forum—not from ads, merchandise, or ad-free experiences. And if those ties sufficed, HuffPost warns, personal jurisdiction would become "universal jurisdiction," allowing suit anywhere its website is visible.

II.

The dismissal was proper. Our precedents require affirmance.

A.

We review the dismissal de novo. Revell v. Lidov , 317 F.3d 467, 469 (5th Cir. 2002). As plaintiff, Johnson has the burden of demonstrating our jurisdiction, id. , but we must accept his uncontroverted, non-conclusory allegations of fact, Diece-Lisa Indus. v. Disney Enters. , 943 F.3d 239, 249 (5th Cir. 2019).

Because we are sitting in diversity and applying Texas law, we have jurisdiction over a nonresident defendant only to the extent consistent with his federal due process rights. Id. Those rights permit our jurisdiction only where the defendant has established enough purposeful contacts with the forum and where jurisdiction would comport with "traditional notions of fair play and substantial justice." Revell , 317 F.3d at 470 (cleaned up).

Johnson argues that we have claim-specific jurisdiction over HuffPost. We have that jurisdiction only when three conditions are met. Seiferth v. Helicopteros Atuneros, Inc. , 472 F.3d 266, 271 (5th Cir. 2006). First , the defendant must "purposefully avail[ ] itself of the privilege of conducting activities in the forum State." Ford Motor Co. v. Mont. Eighth Jud. Distr. Ct. , ––– U.S. ––––, 141 S. Ct. 1017, 1024, 209 L.Ed.2d 225 (2021) (cleaned up). The defendant's ties to the forum, in other words, must be ties that "the defendant himself " purposefully forged.² Second , the plaintiff's claim "must arise out of or relate to" those purposeful contacts.³ A defendant may have many meaningful ties to the forum, but if they do not connect to the plaintiff's claim, they cannot sustain our power to hear it. Third , exercising our jurisdiction must be "fair and reasonable" to the defendant. Seiferth , 472 F.3d at 271.

Those limits "derive from and reflect two sets of values—treating defendants fairly and protecting interstate federalism." Ford Motor , 141 S. Ct. at 1025 (cleaned up). Put another way, a defendant must have "fair warning" that his activities may subject him to another state's jurisdiction. Id. That warning permits the defendant to "structure its primary conduct to lessen or avoid exposure to a given State's courts." Id. (cleaned up). The limits on specific jurisdiction also "ensure that States with little legitimate interest in a suit" cannot wrest that suit from "States more affected by the controversy." Id. (cleaned up).

B.

In Revell , we explained how to apply those principles to cases in which a defendant's website is the claimed basis for specific jurisdiction vis-à-vis an intentional tort. We first look to the website's interactivity. See Revell , 317 F.3d at 470 (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc. , 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) ). If the site is passive—it just posts information that people can see—jurisdiction is unavailable, full stop. Id. But if the site interacts with its visitors, sending and receiving information from them, we must then apply our usual tests to determine whether the virtual contacts that give rise to the plaintiff's suit arise from the defendant's purposeful targeting of the forum state. See id. at 472–76.

Like this lawsuit, Revell was an internet libel case. After deciding that the website in question was interactive, we looked to Calder v. Jones , 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), to determine whether the publisher had targeted the alleged libel at Texas. See Revell , 317 F.3d at 472–76.

The key question, under Calder , is whether the forum state was "the focal point both of the [alleged libel] and of the harm suffered." Calder , 465 U.S. at 789, 104 S.Ct. 1482. Thus, the Calder Court held that California had jurisdiction over two nonresident defendants because the alleged libel discussed "the California activities of a California resident" and "was drawn from California sources," "and the brunt of the harm" to the plaintiff "was suffered in California." Id. at 788–89, 104 S.Ct. 1482.

Applying Calder in Revell , we dismissed for want of personal jurisdiction. The Texan plaintiff complained of an article in a Columbia University web publication that accused him of complicity in a terrorist attack. Columbia's publication was interactive, we explained, because it was "an open forum" where users could post content and interact with others. But the article never mentioned Texas, never discussed Revell's activities there, and was not aimed at Texans any more than at residents of other states. We acknowledged that the story "was presumably directed at the entire world, or perhaps just concerned U.S. citizens." Revell , 317 F.3d at 475. But that did not suffice. For Texas to have jurisdiction, we concluded, the article had to target Texas specifically and knowingly. Id. Because it did not, we lacked jurisdiction. Id. at 476.

C.

Our decision in Revell requires dismissal. HuffPost is interactive, but its story about Johnson has no ties to Texas. The story does not mention Texas. It recounts a meeting that took place outside Texas, and it used no Texan sources. Accordingly, we lack jurisdiction over HuffPost with respect to Johnson's libel claim.

Johnson contests that conclusion. He first claims that HuffPost's interactivity is all that matters. Once we decide that a website exchanges information with its users, he says, we must have personal jurisdiction. If HuffPost is interactive, Johnson thinks, it's irrelevant whether HuffPost targeted Texas with the alleged libel.

Johnson misreads our precedents. In Revell , we treated interactivity as a prerequisite to our standard jurisdictional inquiry. See Revell , 317 F.3d at 472. That position makes good sense. Interactivity reflects only a website's capacity to avail itself of a place. Sites that solicit information, purchases, and ad clicks from their viewers can more easily reach into a forum and cause injury there than can sites that do not. But just because a site can exploit a forum does not mean that it has or that its forum contacts produced the plaintiff's claim. Those requisites must be satisfied even where all the defendant's ties to the forum are virtual.⁴

Next, Johnson conjures that Revell is "completely different" from this case because HuffPost shows ads, sells merchandise, and offers an ad-free service "on the same page as" the alleged libel. The site in Revell , by contrast, solicited subscriptions on "separately navigable pages."

That distinction fails for two reasons. First, Johnson never pleaded it....