Johnson v. Huffingtonpost.com

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 27, 2022

No. 21-20022

Lyle W. Cayce

Clerk

Charles Johnson,

Plaintiff—Appellant,

versus

TheHuffingtonpost.com, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:20-CV-179

ON PETITION FOR REHEARING EN BANC

Before King, Smith, and Haynes, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is

DENIED. The petition for rehearing en banc is DENIED because, at the

request of one of its members, the court was polled, and a majority did not

vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).

In the en banc poll, 7 judges voted in favor of rehearing (Judges Elrod,

Haynes, Costa, Willett, Engelhardt, Oldham, and Wilson), and 10 voted

No. 21-20022

against rehearing (Chief Judge Richman and Judges Jones, Smith, Stewart,

Dennis, Southwick, Graves, Higginson, Ho, and Duncan).

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Jennifer Walker Elrod, Circuit Judge, joined by Haynes,

Engelhardt, and Wilson, Circuit Judges, dissenting from the denial of

en banc rehearing:

Does the Constitution immunize online news-media outlets from libel

lawsuits in states in which they circulate their content online? The panel

opinion in this case held that it does. I am not so sure. The Supreme Court

has held that a print publication “aimed at a nationwide audience” is not

immune from defamation actions in any state where it has “regular

circulation.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773–74, 781

(1984). Are online publications to be treated differently? We should have

reheard this case en banc to reassess this question of exceptional importance.

We should also have reheard this case in light of the circuit split that

the panel opinion begat. None of our sister circuits have “restricted

application of Keeton to print publications” like the panel majority opinion

does in this case. Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 330

(5th Cir. 2021) (Haynes, J., dissenting). In fact, decisions of the Seventh and

Ninth Circuits have relied heavily on Keeton to uphold personal jurisdiction

over companies whose Internet-driven business models evince intent to avail

themselves of the privilege of doing business in the states in which they were

sued. See uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 427–30 (7th Cir.

2010); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1229–31 (9th

Cir. 2011). The Fourth Circuit recently held similarly. See UMG Recordings,

Inc. v. Kurbanov, 963 F.3d 344, 352–55 (4th Cir. 2020), cert. denied, 141 S. Ct.

1057 (2021). The panel opinion in this case broke with these decisions,

cabining Keeton to the almost-bygone world of print-only media.

I.

In January of 2019, the Huffington Post published a headline on its

website that labeled plaintiff–appellant Charles (“Chuck”) Johnson a

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“Holocaust-Denying White Nationalist.” Johnson sued HuffPost for libel.

Characterizing the piece as a fake-news “hit job” by a “notoriously left-

leaning” news outlet, Johnson adamantly repudiated the positions that

HuffPost had publicly attributed to him and sought damages in excess of $1

million.

Johnson, a Texan, filed his complaint with the United States District

Court for the Southern District of Texas. To establish the court’s power to

hear the case, Johnson alleged several interrelated contacts tying HuffPost—

a Delaware corporation headquartered in New York—to Texas: HuffPost’s

online publication and its allegedly libelous article are freely available in

Texas, where Johnson resides and where the article allegedly caused him

reputational injury. The national media outlet “derives substantial revenue”

in the course of “servicing the Texas market through [its] [w]ebsite.” It

“tracks the location and activities of Texas residents on [its] [w]ebsite

thereby enabling targeted advertising to Texas residents that generate

substantial revenue.” And it has contracted “with advertisers in Texas to

advertise on its [w]ebsite” and run ads on its site that are “geared to the

Texas market.”

HuffPost moved to dismiss for lack of personal jurisdiction, and the

district court granted the motion. Our court’s panel majority opinion

affirmed, holding that none of these alleged contacts sufficed to empower a

Texas federal court to hear this libel case against HuffPost. Johnson, 21 F.4th

at 325. The opinion reasons that Keeton cannot be “woodenly appl[ied] . . .

to [I]nternet publications” because “websites are different” than print

publications. Id. Johnson sought rehearing of his case en banc, which,

regrettably, today we deny.

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II.

“The analysis applicable to a case involving jurisdiction based on the

Internet should not be different at its most basic level from any other personal

jurisdiction case.” Admar Int’l, Inc. v. Eastrock, L.L.C., 18 F.4th 783, 786

(5th Cir. 2021) (quoting Pervasive Software, Inc. v. Lexware GmbH & Co. KG,

688 F.3d 214, 226–27 (5th Cir. 2012)). The panel majority opinion gives lip-

service to this key principle, but it swiftly dismisses Johnson’s reliance on

Keeton simply because “websites are different.” Johnson, 21 F.4th at 325

(emphasis added); id. at 330–31 (Haynes, J., dissenting). The panel opinion

thus bifurcates the law of specific jurisdiction over defamation actions: we

now have one rule for print publications and a new special rule for web

publications. This approach plainly conflicts with our professed application

of the same law to the Internet as to the material world.

A.

This case turns on purposeful availment. The central question is this:

what proves a publication’s purposeful availment through cyberspace? In

Johnson’s view, HuffPost’s online circulation of its content (including the

disputed article), considered in light of its ad-driven business model, shows

that the company intended to avail itself of the Texas market. The panel

majority opinion says that Johnson must show something more: namely, that

HuffPost specifically “aimed the alleged libel at Texas.” Id. at 320–21

(majority opinion). As Judge Haynes meticulously explained in her panel

dissent, we apply the Supreme Court’s instructions in Keeton when a

defamation defendant is a publication. See id. at 327–30 (Haynes, J.,

dissenting); Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 425 (5th Cir.

2005); cf. Calder v. Jones, 465 U.S. 783, 789–90 (1984) (Keeton’s companion

case furnishing the “aiming” test for author–editor defendants).

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In Keeton v. Hustler, the Supreme Court instructed us how to apply

the purposeful availment requirement to defamation lawsuits against

publications. Keeton held that a New Hampshire federal court had personal

jurisdiction over Hustler, an Ohio-domiciled magazine with its principal

place of business in California, to hear a libel lawsuit brought by a New

Yorker.1 465 U.S. at 781. Hustler’s only contact with New Hampshire was

its circulation of 10,000–15,000 magazines (containing the alleged libel) in

that state. Id. at 772. But that was sufficient for specific jurisdiction over Ms.

Keeton’s libel suit. It mattered not a whit that the alleged libel had nothing to

do with New Hampshire besides the mere fact of its circulation there. Id.

And why? Because circulation itself showed that Hustler “continuously and

deliberately exploited the New Hampshire market” such that “it must

reasonably anticipate being haled into court there in a libel action based on

the contents of its magazine.” Id. at 781 (citing World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 297–98 (1980)). The bottom line is this: for a

publishing company to purposefully avail itself of a state’s marketplace,

Keeton says its publication simply needs to be in “regular circulation” there.

Id. at 773–74.

The Internet only presents a new twist for the old test: how do we

know that a defendant publishing company continuously and deliberately

exploited the forum state’s market when its publication only 'circulates’ by

virtue of the Internet’s universal accessibility? The panel majority opinion

in this case holds that HuffPost’s online circulation cannot constitute

purposeful availment because Texans act unilaterally in visiting

1

The Court noted that the New York plaintiff was flagrantly forum shopping: she

had no particular connection with New Hampshire; she simply wanted to take advantage

of that state’s generous statute of limitations for libel. 465 U.S. at 772 n.1, 778–79. Here,

by contrast, Johnson is a resident of the forum state, sensibly suing where he says he was

injured.

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huffpost.com. Johnson, 21 F.4th at 320–21. And as for HuffPost’s

geolocation tracking, Texan advertisers, and ads targeting Texans?

“[I]rrelevant,” says the panel majority opinion; “Johnson’s libel claim arises

from the story declaring him a white-nationalist Holocaust denier”—not

HuffPost’s sale of ads, the citizenship of its advertising counterparties, or the

ads themselves. Johnson, 21 F.4th at 320–21.

That is all true. Third parties’ unilateral activities do not create forum

contacts for an unwitting defendant, see Hanson v. Denckla, 357 U.S. 235,

253–54 (1958), and a defendant’s own forum contacts that are unrelated to

the lawsuit itself are insufficient to support specific jurisdiction, see Ford

Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021). The

problem, though, is that the panel majority opinion’s blinkered analysis did

not put the puzzle pieces together. It did not consider HuffPost’s online

circulation in light of its ad-driven business model. As a result, it failed to

tackle the harder and more consequential issue in this case. To wit: does

HuffPost’s ad-driven business model prove that HuffPost intended that its

(ostensibly passive) online circulation would reach the Texas market?

The logic behind Keeton suggests that it very well might. HuffPost

exploits the Texas market just as Hustler exploited the New Hampshire

market. 465 U.S. at 781. The only difference is how they do so. Whereas

Hustler sold magazines, HuffPost sells ads. By making its content freely

available online, HuffPost lures visitors from far and wide. This creates value

for advertisers, which HuffPost enhances by tracking visitors’ geolocation

data and enabling geotargeted ads. Hustler’s circulation in New Hampshire

was obviously no accident: it mailed print magazines there regularly.

Likewise, the argument goes, HuffPost’s Texan audience online was no

accident: HuffPost put its content online with the expectation that it would

attract viewers from the nation’s second most populous state, whose views

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would drive sales of targeted ads and thus boost HuffPost’s revenue.2 See

Johnson, 21 F.4th at 331 (Haynes, J., dissenting) (“It is not an accident that

Texans can access HuffPost, and the approach HuffPost takes towards Texas

is the modern equivalent of Keeton sending magazines to New

Hampshire.”); cf. Woodson, 444 U.S. at 297–98 (authorizing personal

jurisdiction when a corporation “delivers its products into the stream of

commerce with the expectation that they will be purchased by consumers in

the forum State”); South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2092

(2018) (“'[W]hile nexus rules are clearly necessary,’ the Court 'should focus

on rules that are appropriate to the twenty-first century, not the

nineteenth.’”) (citing Walter Hellerstein, Deconstructing the Debate over State

Taxation of Electronic Commerce, 13 Harv. J.L. & Tech. 549, 553 (2000)).3 If

that is so, HuffPost’s online circulation 'in’ Texas provides the basis, under

Keeton, for specific jurisdiction in Texas federal court.

B.

If Johnson were to succeed on this theory of purposeful availment, the

rest of the specific-jurisdiction analysis would easily fall into place. Start with

relatedness, the second prong of the analysis. HuffPost’s online circulation

in Texas is itself the relevant contact—not HuffPost’s geolocation tracking,

targeted ads, or contracts with Texan advertisers. And it is plain as day that

2

HuffPost could put its content online without subjecting itself to jurisdiction in all

fifty states if it wanted to. For instance, the publishing company could put its content

behind a paywall and refuse to offer subscriptions to would-be visitors from certain

undesired states. Or, it could simply refrain from showing ads to visitors from such states.

3

See also Wayfair, 138 S. Ct. at 2099 (rejecting the antiquated “physical presence

rule” in the dormant Commerce Clause context and holding that online retailers “avail[ed]

[themselves] of the substantial privilege of carrying on business” in a state based in part on

“both the economic and virtual contacts respondents have with the State” and on the fact

that “respondents are large, national companies that undoubtedly maintain an extensive

virtual presence” in the state (citations omitted)).

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Johnson’s libel claim arose out of HuffPost’s circulation: Johnson’s

reputation was injured because HuffPost published allegedly false statements

about him online.4 Cf. Keeton, 465 U.S. at 772, 781. Indeed, as a Texas

resident, Johnson was largely injured in Texas, where HuffPost purposefully

circulated its allegedly libelous story and damaged his reputation most

significantly: his own community. Clearly, online circulation gave rise to (or,

at a bare minimum, “related to”) Johnson’s libel claim, just as Hustler’s

print circulation in New Hampshire gave rise to (or “related to”) Ms.

Keeton’s libel claim. See Ford Motor, 141 S. Ct. at 1024–28 (reminding us

that defendant’s contacts need only “relate to” the plaintiff’s claim).

Now consider the final prong of the analysis, fairness to the defendant.

The panel majority opinion compares news–media giants like HuffPost to

“[g]rannies with cooking blogs [who] do not, and should not, expect lawsuits

from Maui to Maine.” Johnson, 21 F.4th at 320. It is hard to take this

comparison seriously. HuffPost is no tech-savvy octogenarian sharing apple-

pie recipes online. Id. at 331 (Haynes, J., dissenting). The publishing

company does not casually post its content just to share its interest in current

events with fellow enthusiasts wherever they may happen to reside. On the

purposeful availment theory described above, HuffPost is a robust

commercial enterprise, covetous of Texan clicks to help drive ad sales and

thus boost its bottom line. And having taken advantage of Texas’s market, it

is only fair that HuffPost accept the burden of jurisdiction in Texas courts.

Put simply, if HuffPost gets the quid, it cannot escape the quo. See Curtis

Publ’g Co. v. Golino, 383 F.2d 586, 593 (5th Cir. 1967) (“Having accepted the

benefits of the market place, [a publishing company] cannot complain that

4

Libel is written defamation, and defamation requires publication of a false

statement. See Bedford v. Spassoff, 520 S.W.3d 901, 904, 906 n.2 (Tex. 2017).

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one of the fruits of the harvest [is] a lawsuit [for libel].” (quoting Curtis Publ’g

Co. v. Birdsong, 360 F.2d 344, 353 (5th Cir. 1966) (Rives, J., concurring))).5

III.

The panel opinion in this case takes us out on a limb. It parts ways

with every sister circuit to have addressed the matter. For this reason too,

we should have reheard this case.

For starters, no other circuit has limited Keeton’s application solely to

print-media defendants. See, e.g., Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th

972, 977, 981 (9th Cir. 2021) (applying Keeton to the volume of skincare

product sales); Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 10–11 (1st

Cir. 2018) (applying Keeton to uphold personal jurisdiction over a foreign

company that “used its website to obtain U.S. customer contracts”); see also

Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 900, 906, 914–15

(10th Cir. 2017) (observing that “[s]ome circuit courts have applied the

Keeton analysis in cases where the out-of-state defendant’s only contacts with

the forum state occurred over the internet . . . .” (emphasis added)). The

panel opinion’s constrictive reading of Keeton is thus at odds with our sister

circuits’ application of that case.

But that is not all. The Fourth, Seventh, and Ninth Circuits have each

specifically concluded that online companies whose business models depend

upon attracting a wide audience for ad-driven revenue purposefully avail

themselves of the privilege of doing business virtually in states where their

sites are widely accessed. The panel majority opinion splits with these three

5

See also Choice Healthcare v. Kaiser Found. Health Plan of Colo., 615 F.3d 364, 374

(5th Cir. 2010) (“Deriving revenue from such commercial activity is the quid pro quo for

requiring the defendant to suffer a suit in the foreign forum.”).

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sister circuits in concluding that HuffPost did not purposefully avail itself of

the privilege of doing business in Texas.

Consider the Seventh Circuit’s analysis in uBID v. GoDaddy. 623

F.3d at 427–30. In that case, the court discerned purposeful availment from

an out-of-state domain-registration site’s “way of doing business” online. Id.

Arizona-based GoDaddy had conducted a nationwide ad campaign, targeting

no state in particular, but it was sued in Illinois. Relying on Keeton, the court

held that GoDaddy had “deliberately and continuously exploited the Illinois

market.” Id. at 427–29 & n.1, 433. “[I]t is easy to infer,” the court observed,

that GoDaddy “intended to reach as large an audience as possible, including

the 13 million potential customers in the nation’s fifth most populous state.”

Id. at 428. It did not matter that Illinois residents “unilaterally initiated”

transactions with GoDaddy online; GoDaddy obviously wanted their

business and used the Internet to get it. Id. at 428–29. Since a “typical

business” operating on the same scale in terms of Illinois revenue and

customers—but without the Internet—“would unquestionably be subject to

personal jurisdiction,” the Seventh Circuit concluded that GoDaddy’s

“unusual [Internet-based] business model [should not] complicate an

otherwise straightforward case for sufficient minimum contacts” under

Keeton. Id. at 429 (emphasis added).

The Ninth Circuit too has clearly held that a website whose

“economic value turns, in significant measure, on its appeal to [forum

residents]” may be subject to personal jurisdiction in the forum state.

Mavrix, 647 F.3d at 1227–31.6 In Mavrix, an Ohio-based online publication

6

See also AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1211 (9th Cir. 2020)

(reaffirming the core teaching of Mavrix, as relevant here, that when “[ad] targeting itself

indicate[s] that [a defendant website] knew about the [forum’s] user base which it then

exploit[s] 'for commercial gain by selling space on its website for advertisements,’” the

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was sued in California. Applying Keeton, the court noted that the defendant

website, like Hustler, “sought and attracted [a] nationwide audience[]” and

“cultivated [its] nationwide audience[] for commercial gain.” Id. at 1230.

The court reasoned that the breadth of the defendant online publication’s

audience was “integral” to its ad-based “business model.” Id. It was no

accident that Californians visited Mavrix’s website: Mavrix, like Hustler,

wanted viewers “in any state”—including a populous state like California.

Id. It was a “predictable consequence” of the website’s “business model[].”

Id. Thus, following Keeton, the Ninth Circuit held that when “a website with

national viewership and scope appeals to, and profits from, an audience in a

particular state, the site’s operators can be said to have 'expressly aimed’ at

that state.” Id. at 1231. Hence, specific jurisdiction in California was proper.

Most recently, in the international context, the Fourth Circuit held

that a foreign website operator purposefully availed himself of the privilege

of conducting business in Virginia. See Kurbanov, 963 F.3d at 352–55. Noting

that “[i]t is hardly unusual for websites to be free to use in today’s Internet

because many corporations 'make money selling advertising space,’” the

court concluded that forum-residents’ “acts of accessing the Websites”

supported specific jurisdiction because the website operator “made a

calculated business choice not to directly charge visitors in order to lure them

to his Websites.” Id. at 353 (emphasis added) (quoting Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 926–27 (2005)). Because the

website operator “ultimately profits from visitors by selling directed

advertising space and data collected to third-party brokers, [he] thus

purposefully avail[s] himself of the privilege of conducting business within

Virginia.” Id.

website can be said to have purposefully availed itself of the forum (quoting Mavrix, 647

F.3d at 1230)), cert. denied, 142 S. Ct. 76 (2021).

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IV.

The panel majority opinion expresses concern at the jurisdiction-

expanding implications of applying Keeton to cyberspace. Johnson, 21 F.4th

at 321, 324, 326. To be sure, the Internet has revolutionized countless

industries—news-media chief among them—and it has all but dissolved

states’ borders in matters of commerce. The Internet allows corporations to

continuously and deliberately exploit more states’ markets more easily. No

doubt, that may mean that corporations taking advantage of the Internet’s

vast reach may be haled into more states’ courts. As Judge Haynes reminded

us in her excellent dissent, it is not for us to worry whether this is good or bad

as a policy matter. Id. at 331–32 (Haynes, J., dissenting). That is properly

left to the states and their long-arm statutes. Our sole concern is what the

Constitution—as interpreted by the Supreme Court—requires.

In refusing to apply Keeton and failing to apply the appropriate

purposeful availment test correctly, the panel majority opinion gave short

shrift to the Supreme Court’s guidance and broke with our sister circuits.

For these reasons, I respectfully dissent from our denial of Johnson’s petition

for rehearing en banc.

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