Articles Posted in Jurisdiction and Venue

Defamation law in Virginia and Washington, D.C. is identical in most material respects. Choice-of-law principles usually won’t make much of a difference to the outcome of a defamation case. Both Virginia and D.C. follow the general principles of defamation law that are recognized throughout the United States. There are, however, some notable differences in terms of the specific rules and legal standards that apply to defamation cases. Today’s blog post summarizes some of the key differences that might affect how you choose to present your case or where you intend to bring it.

Defamation Per Se

Virginia recognizes both defamation per se and defamation per quod. In the District of Columbia, the law in this area is less clear. Defamation per se is a type of defamation that is considered so damaging to a person’s reputation that it is automatically assumed to be defamatory, without the need for the plaintiff to prove actual damages. In Virginia, defamatory statements qualify as “per se” defamatory if they (1) impute the commission of a crime involving moral turpitude; (2) impute that the plaintiff is infected with a contagious disease which would exclude the party from society; (3) impute an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudice the party in his or her profession or trade. In the District, there isn’t a lot of authority recognizing defamation per se in any situation other than one involving a false statement relating to the commission of a serious crime. (See, e.g., Raboya v. Shrybman & Assocs., 777 F. Supp. 58, 59 (D.D.C. 1991) (“In the District of Columbia, in order to be actionable as libel per se, the contents of a defamatory publication must “impute…the commission of some criminal offense for which [the Plaintiff] may be indicted and punished, if the charge involves moral turpitude and is such as will injuriously affect [the Plaintiff’s] social standing, or,…the question is whether, from the language attributed to defendant, there is something from which commission of a crime can be inferred.’”)). Thus, a plaintiff contemplating a defamation claim based on a false statement prejudicing the plaintiff in his or her profession would usually be better off bringing the claim in Virginia, where damages may be presumed. Continue reading

When filing a defamation lawsuit against an individual, you need to select a court that has personal jurisdiction over the defendant. A Virginia court doesn’t necessarily have the authority to adjudicate a case against a resident of another state with no connections to Virginia. To determine whether a court has personal jurisdiction over a particular defendant, look first to Virginia’s “long-arm statute” to see whether any of its provisions apply. (The long-arm statute is so named because it lists the circumstances under which Virginia can extend a “long arm” to grab a resident of another state and hale him into a Virginia courtroom). If the long-arm statute does apply, the court must next ensure that exercising personal jurisdiction over that defendant would not violate the Due Process Clause of the United States Constitution. This generally means that to acquire personal jurisdiction over a non-resident defendant in a defamation case, the defendant must have purposefully directed his defamatory statement to a Virginia audience. Absent such purposeful activity, the court would likely find that haling the person into Virginia would offend “traditional notions of fair play and substantial justice,” and would therefore be unconstitutional.

To determine whether specific jurisdiction exists in a particular case, relevant considerations include:

  1. the extent to which the defendant purposefully availed himself of the privilege of conducting activities in Virginia;
  2. whether the plaintiff’s claims arise out of those activities directed at Virginia; and
  3. whether the exercise of personal jurisdiction would be constitutionally reasonable.

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Suppose you live in Virginia and have been defamed on Facebook or Twitter by someone who lives in another state on the other side of the country. Can you file a lawsuit in Virginia, or do you have to sue in the state of the defendant’s residence? Many have tried to sue distant tortfeasors in Virginia on the theory that social-media posts can be read all over the world (including Virginia) and that the defendant knew his defamatory statements would cause harm to a person located in Virginia, but these lawsuits rarely succeed. It has become clear that to sue a person in Virginia in cases of Internet defamation, courts want to see a purposeful targeting of Virginia readers. Merely issuing a statement published to the entire world is not enough.

The relevant legal concept is that of “specific personal jurisdiction.” The court needs to have power to issue a judgment over another person, and to do so consistent with the United State Constitution, specific (or general) personal jurisdiction must be found to exist. In essence, the question is whether the defendant maintains sufficient “minimum contacts” with Virginia so a lawsuit filed against that person in Virginia would not offend “traditional notions of fair play and substantial justice.” The general idea is that it would not be fair to hale someone to court on the other side of the country if that person had no meaningful connections with that other state. Posting something on Facebook does not connect a person in any meaningful way with every state in the country.

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Just last week I wrote about a Virginia state-court case that dealt with the issue of whether sending electronic data through a Virginia server (which often happens when defamation is posted online) could satisfy the “minimum contacts” test needed to establish personal jurisdiction. Two days after I posted that article, a federal case from the Eastern District of Virginia was decided in which a federal judge grappled with the exact same issue. In both cases, the courts reached the same conclusion: in cases of online defamation, personal jurisdiction requires more than merely posting comments hosted on a server that happens to be based in Virginia, or which sends data through a Virginia-based server on its way to the Internet. Due process is not satisfied without purposeful targeting of a Virginia audience.

The federal case is FireClean, LLC v. Andrew Tuohy. According to the allegations of the complaint, the facts are essentially these: FireClean manufactures a gun-cleaning oil it claims reduces carbon residue buildup in firearms. It is made of a blend of at least three natural oils derived from a plant, vegetable, fruit, shrub, flower, or tree nut. Beginning around August 2015, various gun-themed blogs started publicizing that FireClean was really nothing more than “Crisco” or other common vegetable oil. The maker of a competing gun oil posted a video online purporting to prove that FireClean was “pretty much a Crisco oil.” The Vuurwapen Blog took an interest in this allegation and decided to further investigate.

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In cases of Internet defamation, the issue of personal jurisdiction comes up a lot. “Personal jurisdiction” refers to a court’s authority to make rulings that affect a person. This isn’t an issue when two Virginia residents are in litigation with each other, as state courts have the power to enter rulings that affect their residents, but when a Virginia resident files a libel lawsuit in Virginia against someone who doesn’t live here, a preliminary issue arises with respect to whether the Virginia court has the power to enter a judgment against the nonresident. If the court lacks personal jurisdiction over the defendant, the case will be dismissed. When defamatory statements are published online and are therefore accessible all over the world, Virginia courts struggle with trying to sort out whether it is constitutionally permissible to assert authority over a writer who has never stepped foot in Virginia.

The basic analysis requires two steps. First, the court must determine whether Virginia’s “long-arm statute” reaches the defendant. (Think of this law as one that describes the circumstances under which the state can reach out with a “long arm” to grab a defendant residing in another state and pull him into Virginia to require him to defend against a lawsuit). Next, assuming the long-arm statute does apply, the court must ensure that exercising personal jurisdiction over that defendant complies with the Due Process Clause of the United States Constitution.

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The First Amendment dictates that religious organizations are entitled to decide matters of church governance, faith and doctrine without state interference. Accordingly, as a general rule, courts may not hear disputes involving religious law, principle, doctrine, discipline, custom or administration. In what has come to be known as the “ecclesiastical abstention” doctrine, courts should normally abstain from adjudicating issues involving theological or spiritual judgment, or the internal governance of religious bodies. Courts will often classify the issue as one involving jurisdiction, noting that the religious bodies have exclusive jurisdiction over their own internal workings.

For example, the Supreme Court of Virginia once considered a church pastor’s defamation claim against a church deacon based on his statement that the pastor had “borrowed over $100,000 from believers and has not returned the money.” While an express or implied accusation of theft would normally be treated as defamation per se under Virginia law, the court declined to exercise jurisdiction on the ground that the Free Exercise Clause of the First Amendment “divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials.”

Still, courts may exercise jurisdiction over defamation actions involving religious organizations where “neutral principles of law” may be applied to resolve the dispute. The Supreme Court of South Carolina recently granted certiorari to consider the question of whether a pastor may use the First Amendment’s Free Exercise Clause to shield himself from defamation liability stemming from statements he made about the church’s trustees at a congregational meeting or whether the court could apply neutral principles of law to decide the case. The court found that “a tortfeasor is not shielded from liability simply by committing his torts within the walls of a church or under the guise of church governance.”

Carlos Henriquez and his wife traveled from their home in Georgia to Colombia to seek infertility treatments. They eventually contracted with a surrogate mother who gave birth to twins. A custody dispute arose between the Henriquezes and the surrogate, and a Colombian court awarded custody to the Henriquezes. A Colombian newspaper, El Pais, published articles about the case and placed the articles online where Georgia residents could access them. Henriquez brought a defamation claim against El Pais arguing that the articles were defamatory. El Pais moved to dismiss the claim for lack of personal jurisdiction.

Henriquez contended that El Pais targeted his family and purposefully directed the defamatory statements at Georgia. He argued that the court had personal jurisdiction over El Pais because it published defamatory statements in print and on its web page that were seen in Georgia. Henriquez submitted evidence that the El Pais web page contained advertisements for U.S. companies that transacted business in Georgia, from which El Pais derived revenue.

El Pais argued that the court lacked personal jurisdiction because the advertisements were placed on its site by bogota.jpgan ad server owned and operated by, a Colombian company. El Pais did not market its own goods but merely disseminated news stories. The district court granted the motion to dismiss and Henriquez appealed.

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