A Nice Test of the Calder “Exception” to McIntyre v. Nicastro

In last year’s McIntyre v. Nicastro, Justice Kennedy, writing for four Justices, emphasized that personal jurisdiction rested on purposeful availment of the forum state.  But, he quickly qualified, “in some cases, as with an intentional tort, the defendant might well fall within the State’s authority by reason of his attempt to obstruct its laws.” As many have noted, this leaves the Calder v. Jones libel jurisdiction line of cases up in the air.  Do they remain good law?  Would it matter if the libel happened only over the ‘net?

I guess we’ll see. Read the complaint in O’Keefe v. Current Media.  It’s a good example of what’s coming — a news report delivered mostly on the web, which happened to reach New Jersey, where the plaintiff now seeks redress in State Court for libel.  Does New Jersey have jurisdiction over Current Media, Keith Olberman, and David Shuster?  Only Justices Breyer and Alito know.

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1 Response

  1. CBR says:

    I have an article coming out in the UC Davis Law Review next month that argues there should not be jurisdiction in such cases (“The Inextricable Merits Problem in Personal Jurisdiction,” available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1952892). Essentially, if PJ depends on the commission of an intentional tort, then there is no way to determine jurisdiction without reaching the merits of the underlying case. I don’t think the internet context of the alleged libel is dispositive, but I do think it makes a difference in terms of assumptions about relative litigation resources–many of the latest internet libel cases involve plaintiff corporations suing individual consumers who criticize their products online.