Petition — Irish People, Inc. v. Smith

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

aus _>—

THE IRISH PEOPLE, INC.,

Petitioner,

—_—Vi—

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

—_

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHARLES S_ SIMS, Counsel of Record

BURT NEUBORNE

American Civil Liberties Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Counsel for Petitioner

QUESTIONS PRESENTED

l. May a federal court, in a federal

question case where Congress has rot pro-

vided for nationwide service of process,

nevertheless assert in personam jurisdic-

tion beyond the reach authorized by

Fed.R.Civ.P. 4(e) and the local long-arm

statutes on which it relies?

2. Does the exercise of in personam

jurisdiction by the United States

District Court for the District of Columbia

over newspapers and other purveyors of

First Amendment materials situated any-

where in the United States violate the

Due Process Cause or the First Amendment

where the only forum-related activity

relied on -- in this case, receipt in

the District of a total of 50 newspaper

copies mailed from New York to members

of Congress -- consists of the exercise

of the First Amendment right to petition

the government ?

De Is minimal circulation in a forum a

constitutionelly adequate basis for the

exercise of in personam jurisdiction,

where the defendant has no other contacts

with the forum and derives at most a

de minimis benefit from that circulation,

where the defendant has not engaged in

activities to purposefully avail itself

of the benefits and protections of the

forum state's laws, and where the forum state

has no interest in adjudicating the

lawsuit?

ii

TABLE OF CONTENTS

Page

QUESTIONS 0

TABLE OF AUTHORITIES “eer eeeereeeeeeeeeee Vv

OPINIONS BELOW. e*eneeneeeneneeneneeneneneeneeeeeee 1

JURISDICTION. es*enernereieeneneeneneneneneeneneeneeneeneeeee 1

CONSTITUTIONAL AND STATUTORY

Dees «566666600666660066460000668

STATEMENT OF THE OO

REASONS FOR GRANTING THE WRIT.........11

I. THE DECISION BELOW, SUSTAINING

JURISDICTION IN A FEDERAL QUES-

TION CASE BEYOND THE LOCAL LONG-

ARM LIMITS INCORPORATED BY FED.

R.CIV.P. 4(e), CONFLICTS WITH

UNITED STATES V. FIRST NATIONAL

CITY BANK, 379 U.S. 378 (1965)

AND WITH DECISIONS OF THE

COURT OF APPEALS.......eeeeeeeeee19

II. THE DECISION BELOW, UPHOLDING

JURISDICTION NOTWITHSTANDING

THE FIRST AMENDMENT BASED

GOVERNMENT CONTACTS EXCEPTION

TO THE D.C. LONG-ARM STATUTE,

CONFLICTS WITH CONTROLLING

DECISIONS OF THE D.C. COURT

OF APPEALS AND PRESENTS A FED-

ERAL QUESTION OF EXCEPTIONAL

IMPORTANCE... .cccccccccccsescecee dl

iii

IIt.

A. The Conflict With The

D.C. Court of Appeals

Concerning The Govern-

ment Contacts Exception.....31l

B. The Conflict With The

D.C. Court of Appeals

Concerning Whether The

Government Contacts

Doctrine Is Constitu-

tionally Compelled By

The First Amendment.........35

THE DECISION BELOW, BAS ™NG

JURISDICTION SOLELY ON

MINIMAL CIRCULATION IN THE

FORUM, CONFLICTS WITH

DECISIONS OF FOUR CIRCUITS

PRECLUDING SUCH JURISDICTION

ON FIRST AMENDMENT GROUNDS.....44

I, 6.0. 6:0 66065068050 04080000600008

iv

TABLE OF AUTHORITIES

Cases: Page

Arrowsmith v. United Press

International, 320 F.2d

219 (2d Cir. CO See ss

Barr v. United States, 478 F.2d

1152 (10th Cir. oe) errr TT

Buckley v. New York Post Corp.,

373 F.2d 175 (2d Cir. 1967).........45

California Motor Transpor Co. v.

Trucking Unlimited, 404 U.S.

508 CRUE 00 60060056860006606000600000R

Cox Enterprises v. Holt, 678 F.2d

936 (llth Cir. BEBE eccceceeeeeseee 48

Curtis Publishing v. Golino, 393

F.2d 586 (5th Cir. 1967).....++2++--48

DeJames v. Magnificence Carriers,

Inc., 654 F.2d 280 (3d Cir.

Ort. 34

Eastern Railroad Presidents Con-

ference v. Noerr Motor Freight,

305 U.S. 127 1) aS 8 = 42

Environmental Research Inter-

national, Inc. v. Lockwood Greene

Engineers, Inc., 355 A.2d 808

(D.C. Cir. 1976) .ccccccccccccce c Paseim

Erie Railroad Co. v. Tompkins,

304 U.S. 64 CROSS oc ceseeeeeseneesnene

Page

Feminist Women's Health Center, Inc.

v. Mohammed, 586 F.2d 530 (5th

Cir. 1978), cert. denied 444

Balls GO Geos er ccccccessécoccoccecc 4S

Fandel v. Arabian American Oil

Co., 345 F.2d 87 (D.C. Cir. 1965)...36

Gkiatis v. S.S. Yiosnas, 342 F.

2da 546 (4th Cir. es

Hanna v. Plumer, 380 U.S. 460 (1965)..33

Hanson v. Denckla, 357 U.S. 235

Di aeseheeeeseeeeeocoeovososeooans 18

Insurance Co. of Ireland v. Companie

des Bauxite de Guinea, 72 L.Ed.2d

492 De «peceeeoceseesooosocesesoone

International Shoe Co. v. Washington,

326 U.S. 310 0 es °

Keeton v. Hustler Magazine, Inc.,

682 F.2d 33 (lst Cir. 1982).........45

Kulko v. Superior Court, 436 U.S.

84 err TTT TTrTrTTT TTT.

Margoles v. Johns, 483 F.2d 1212

(D.C. Cir. pp Tr TrTTriie: 45

Marsh v. Kitchen, 480 F.2d 1270

(2d Cis. Di Pnbenaeeecoeocececoesoooeus

McCabe v. Kevin Jenkins and Asso-

ciates, 531 F. Supp. 648 (E.D.

Pa. i PeeneegeeeeeseooeeeeooocooecoooGe

vi

Page

McGee v. International Life Ins.

Co., 355 U.S. 220 ine aes ceceeooesoenn

McNutt v. General Motors Acceptance

Corp., 298 U.S. 178 (1936) .....eeee007

Missouri v. National Organization

for Women, 620 F.2d 1301 (8th Cir.),

cert. denied 449 U.S. 842 (1980)...41

Moor v. County of Alameda, 411 U.S.

693 SE oecoceoeoeeeeeeeseeeeeeseeene

Mueller Brass Co. v. Alexander

Milburn Co., 152 F.2d 142

Te ececeeecooseoseseososesooses 36

NAACP v. Button, 371 U.S. 415 (1963)..40

New. York Times Co. v. Connor, 365

F.2d 567 (5th Cir. 19€6)........45, 47

Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437 (1952).....27

Roaden v. Kentucky, 413 U.S.

496 eT TTT TTT TT.

Rose v. Silver, 394 A.2d 1368 (D.

Cc. 1978), reh. en banc denied,

398 A.2ad 787 (1979).........23, 32, 34

SFW v. Kaiser, 647 F.2d 200 (D.C.

Cir. DEEP eceeoeesooososoesoune 14, 24

Shaffer v. Heitner, 433 U.S. 186

PTE) 606660006 06SS6b SC eeSSesoeeoooene

vii

Siam Kraft Paper Co., Ltd. v.

Parson & Whittemore, Inc., 400

F. Supp. 810 (D.D.C. 1975),

aff'd. mem., 521 F.2d 324

Wee Ge BER vsccccnctcoccccecosell

Stafford v. Briggs, 444 U.S. 527

CUGSS) ccccccccccccocceccesecccec cs OSS

Terry v. Raymond International,

658 F.2d 398 (5th Cir.

Tey eocccceseccesoscooeesceone 25, 27

Thermtron Products v. Hermansdorfer,

423 U.S. 336 Se censeocdoeeeseeool

Traher v. DeHavilland Aircraft of

Canada, Ltd., 294 F.2d 229 (1961),

cert. denied, 368 U.S. 954 (1962)...36

United Mine Workers v. Illinois

State Bar Association, 389 U.S.

217 ERED 6 coetoeeeoeeseoesooscasoooun

United Mine Workers of America v.

Pennington, 381 U.S. 657 (1965).....41

United States v. First National

City Bank, 379 U.S. 365

CRED cccoeeesooesceseesseeoute 26 , 27

Walker v. Armco Steel Corp., 446

U.S. 740 OO Serr rTTrTrTrTr

Webber v. Michela, 633 F.2d 519

(8th Cir. BEE occeceeeeeete ceeeeeeoonsl

Wells Fargo & Co. v. Wells Fargo

Express Co., 556 F.2d 406 (9th

Cir. CS rrrrrrTTTrTTITTTeT TT TTT...

Zurcher v. Stanford Daily, 436 U.S.

537 ET TTTTTT TTT

viii

OTHER AUTHORITIES: Page

22 BelteGe § errr rrri?rrrifrfrersTe. 5

28 U.S.C. § DE? 64nec066e0eneeeeeeer

Federal Rules of Civil Procedure

£5 660066600600600660006060000066600088

| | PPPPPTTrTrTrrrrrr+rrirrrrrresrTtT ee

4(@) wccccccccccccscccecltl, 14, 23, 31

AZ (Bb) (2) cc ccccccccccccccccccccccccced

AZ(B) (3). cccccccccccccccccccccscccces

BL le) occcccccccccccccccccccccccccceka

2 Moore's Federal Practice (1982 ed.)

q Ge SBERWSs coccoccoesesooeceseecooonn

4 PS PPPPTTTTTTTITiITrTirrrrrfrirffrrTss. ...

q GoGOREet cocoececeeeeesooeseeeocont

4 Wright & Miller, Federal Practice

& Procedure (1978 ed.J.........

q 1075. rv eee ewe eweeeeeeeeeeeeeeeeeeee 25

4 1114.. see eee eeeeeeeeeeeeeeeeeeee 25

q 1115. eee ee eeeweeeeeeeeeeeeeeeeeeee 25

Von Mehren & Trautman, Jurisdiction

to Adjudicate:

a... 24

OPINIONS BELOW

The opinion of the Court of Appeals,

reported at 684 F.2d 928 (D.C. Cir. 1982) is

set forth infra at Pet.App. la-58a. That

opinion reviewed two separate orders of

the district court, one reported (see

infra at Pet.App. 59a-74a), which forms

the basis for this petition, and one

reported at 502 F. Supp. 63. The Court

of Appeals’ discussion of the jurisdic-

tional issue raised herein appears at

684 F.2d at 932 n.9 (see infra Pet.App.

6a n.9).

JURISDICTION

The jurisdiction of this Court is

conferred by 28 U.S.C. § 1254(1) to

review a judgment of the Court of Appeals

for the District of Columbia Circuit

entered on July 2, 1982. A timely pet-

ition for rehearing and/or rehearing en

banc was denied on September 9, 1982.

Pet.App. li2a-ll4a.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution, Amendment I:

Congress shall make no

law ... abridging the

freedom of speech, or of

the press; or the right

of the people peacably to

assemble, and to petition

the Government for a re-

dress of grievances.

U.S. Constitution, Amendment V:

No personal shall ... be

deprived of life, liberty,

or property, without due

process of law ....

Rule 4(e) Fed.R.Civ.P.:

(e) Same [Summons]: Ser-

vice Upon Party ‘ot Inhabi-

tant oF or Fond Within State.

Whenever a statute of the

United States or an order of

court thereunder provides for

service of a summons, or of a

notice, or of an order in

lieu of summons upon a party

not an inhabitant of or found

within the state in which the

district court is held, ser-

vice may be made under the

circumstances and in the man-

ner prescribed by the statute

or order, or, if there is no

provision therein prescribing

the manner of service, in a

manner stated in this rule.

Whenever a statute or rule of

court of the state in which

the district court is held

provides (1) for service of

a summons, or of a notice,

or of an order in lieu of

summons upon a party not an

inhabitant of or found within

the state, or (2) for service

upon or notice to him to ap-

pear and respond or defend

in an action by reason of the

attachment or garnishment or

similar seizure of his property

located within the state, ser-

vice may in either case be

made under the circumstances

and in the manner prescribed

in the statute or rule.

The District of Columbia long-arm

statute, § 13-423(2), provides, in rele-

vant part:

Personal Jurisdiction Based

Seon Conduct. A District of

° a court may exercise

personal jurisdiction over

a person, who acts directly

or by an agent, as to a claim

for relief arising from the

person's - (1) transacting

any business in the District

of Columbia ....

STATEMENT OF THE CASE

This is a civil enforcement action

brought by the Attorney General pursuant

to the Foreign Agents Registration Act

as amended (hereinafter "the Act" or

"FARA"), 22 U.S.C. § 611 et seg., seek-

ing an injunction to compel the defend-

ant to register and otherwise comply

with the Act. The defendant is a New

York corporation whose sole business is

the publication of The Irish People, a

small weekly newspaper serving the

Irish-American community. The Irish

People is devoted to the reporting of

local, national, and international

events of particular interest and con-

cern to its Irish-American readers. The

newspaper is written and edited by Amer-

ican citizens, resident in New York, in

the exercise of their right to freedom

of speech and of the press. It is undis-

puted that they act as volunteers and

receive no compensation for their ser-

vices. There is no written or oral

agreement between The Irish People, Inc.

or its editors and its alleged principal,

the Irish Northern Aid Committee ("INAC"),

a political association headquartered in

New York City, and the Attorney General

has never claimed otherwise.+/

l. The proceedings which form the basis

of this petition stem from a motion to

dismiss filed by the Irish People (here-

after sometimes referred to as "defend-

ant") in 1976 under Fed.R.Civ.P. 12(b) (2)

uf Although the only principal of which

e defendant is alleged to be an

agent is a domestic political associa-

tion, the Irish Northern Aid Committee

headquartered in New York, the Attorney

General's complaint was not statutorily

deficient in that respect because the

statute apparently contemplates a duty

to register by an agent of a

principal which is itself the agent of

a foreign principal, as the Irish

Northern Aid Committee has been alleged

to be. See 22 U.S.C. § 61l(c).

and (3), denied by the district court in

early 1977.2/

The sole paragraph in the complaint

having any connection to the District of

Columbia was 4 3, which alleged that

"Defendant is the owner and publisher of

a weekly newspaper, The Irish People,

which is sold and distributed within

the District of Columbia." Complaint

{ 3. The Attorney General did not

predicate his complaint on District of

ef There have been no proceedings on

e merits of the Attorney General's

complaint. The case reached the Court

of Appeals in 1981 on appeal from a mo-

tion to dismiss on due process grounds

granted by the District Court in November,

1980. Review of the issues raised by the

grounds relied on by the District Court's

dismissal, extensively addressed in the

Court of Appeals’ decision reversing that

dismissal, is not sought here, since the

Court of Appeals remanded on that ground

for further exploratory proceedings. The

jurisdictional issue raised in this pet-

ition, on the other hand, is squarely

presented, and, if decided in petitioner's

favor, would terminate this litigation

promptly, consistent with the values jur-

isdictional limitations are intended to

preserve.

Columbia-related activities in any other

respect nor would such activity (e.g.,

mailing some copies of the newspaper to

congressmen at the Capitol) have been a

necessary or even appropriate element of

a claim under FARA. Although defendant

denied { 3 except to the extent that the

defendant admitted that a small number

of copies of The Irish People were mailed

to addresses within the District of

Columbia, the Attorney General made no

attempt to substantiate that allegation

or otherwise to support the exercise of

personal jurisdiction in this district .2/

The defendant supported its jurisdictional

objection by relying on an affidavit estab-

lishing inter alia that The Irish People,

oY Plaintiff had the burden of proving

is entitlement to in personam juris-

diction. McNutt v. General Motors Ac-

ceptance Corp., 295 U.S. 178, 169 (1936).

See generally J. Moore, Federal Practice

o-e0TAT, ¥.08 (1) .

is a New York corporation, resident in

New York; its newspaper is printed in

the New York metropolitan area (Hillside,

New Jersey); The Irish People did not

get advertising from, or solicit adver-

tising from, Washington, D.C.; had no

reporters or employees or officers

there; was not licensed to do business

there; had at no time conducted business

there; did not maintain a telephone

there; had no bank accounts there; had

no newsstand or other wholesale distri-

bution there; at most 55 of The Irish

People's weekly press run of 13,000

copies were sent to Washington, D.C.,

of these approximately 50 were mailed

to members of Congress, 45 of which

were sent without paid subscriptions;

there were “a maximum of 5 individual

subscribers in the District"; and that

it received at most $100 from its

Washington distribution out of approx-

imate annual operating expenses in

excess of $73,750. Armstrong Affidavit,

Pet.App. 116a-120a.

Nevertheless, without mentioning

either a controlling local rule of com-

petence authorizing in personam juris-

diction in these circumstances, or the

consistent decisions excluding contacts

with the federal government from consid-

eration as "transacting business" within

the meaning of the D.C. long-arm statute

for First Amendment reasons, the district

court denied the motion to dismiss,

relying heavily on the fifty copies pro-

vided to congressmen. Pet.App. 69a.

The court also rejected defendant's ar-

gument that the First Amendment precluded

predicating jurisdiction on the minimal

number of copies of an out-of-state publi-

cation distributed in the District of

Columbia in the absence of any other

forum-related contacts or forum interests.

2. On appeal the panel summarily

rejected defendant's jurisdictional

appeal. Like the district court, the

Court of Appeals entirely failed to

address the D.C. long-arm statute, the

repeated holdings of both the D.C.

Courc of Appeals and the United States

Court of Appeals of the D.C. Circuit

applying an exception for government

contacts for First Amendment reasons, or

the other First Amendment issues compre-

hensively addressed in The Irish People's

priet.4/ The panel's entire discussion

of the jurisdictional issue is as follows:

4/ Defendant also challenges

the district court's January

1977 order denying its motion

A Similarly the Attorney General's

iscussion of the jurisdictional issue

in the Court of Appeals entirely failed

to address, as defendant's brief had,

whether the local long-arm statute

governed the jurisdictional question and

whether, assuming it did, jurisdiction

was authorized by that statute as con-

strued by the local courts.

10

to dismiss for lack of juris-

diction. However, we agree

with the district court that

sufficient contacts exist for

jurisdiction to be proper here.

See Hanson v. Denckla, 357

5. ; ev. Inter-

national Life Ins. Co.,

2S. ; International

Shoe Co. v. Washington, 326 U.s.

684 F.2d at 932 n.9., Pet.App; 6.

Defendant's petition for rehearing

and/or rehearing en banc was summarily

denied September 9, 1982.

REASONS FOR GRANTING THE WRIT

This case presents an unsettled

question of recurring importance and con-

tinuing dispute concerning the scope of

in personam long-arm jurisdiction of

federal courts in federal question cases

where Congress has not provided for

nationwide service of process. Is that

jurisdiction limited, as Rule 4(e) sug-

gests, to cases where a state rule of

competence authorizes long-arm juris-

11

diction and service of process to effec-

tuate it? Or, as the Court of Appeals

recently suggested in another case and

apparently held below, may federal courts

"disregard aspects of the state statute

and state court interpretations of it

that do not fit the federal frame of

reference."?2/

Although theoretically the federal

government could provide for nationwide

service of process by federal courts in

any jurisdiction, within the limits of |

any constraints imposed by the Fifth

Amendment or other constitutional pro-

visions, it has not done so for the cause

of action in this case. The District of

0. 28 See st Vv. Karsers 647 F.2d 200, 204

D.C. Ci. e District of Columbia

is a “state” for purposes of the Federal

Rules of Civil Procedure. Id. at 204 n.8,

citing Fed. R.Civ.P. 81).

12

Columbia has, of course, no reasor. to

shape its long-arm statute to encompass

lawsuits brought by the federal government

for enforcement of federal statutory pro-

visions against defendants throughout the

United States who happen to have contacted

the federal government in Washington,

D.C. Accordingly, its long-arm statute

has long been authoritatively construed

to exclude contacts with the federal

government, falling within the general

scope of the First Amendment's freedom

of press and of the right to petition

the government for a redress of grievances,

from consideration as “transacting busi-

ness” within the meaning of its long-

arm statute. °/ By ignoring the local

long-arm statute and the cases barring

consideration of the very factors relied

on below in the "transacting business"

6/ See infra at 32 n.22, 35 n.24.

13

analysis, the decisions below avoided

the express limitations the District of

Columbia has erected to the use of its

long-arm statute, even though Rule 4(e)

unambiguously mandates recourse to that

long-arm statute in the circumstances of

this case. Nearly all other Courts of

Appeals have found that Rule 4(e) bars

such an end-run,2/ regardless of the

"“perplexities" of its reliance on state

long-arm statutes in federal question

cases such as this .2/

Notwithstanding the Court of Appeals’

evident reliance on the district court's

reasoning, which failed to measure juris-

diction by the standards of the local long-

arm statute as construed by the local

courts, it is possible to interpret its

7/ See infra at 25 n.16,

8/ See SFW v. Kaiser, 647 F2d at 204,

quoting Von Mehren & Trautman, Jurisdic-

tion to Adjudicate: A Suggest alysis,

cryptic holding in another way, as agree-

ing (implicitly) that a local rule of

competence is required but as disagree-

ing either that the local statute barred

jurisdiction in these circumstances,

and/or that the First Amendment right

to petition the government required ex-

cluding the 50 copies provided to con-

gressmen from consideration as transact-

ing business. Viewed this way, the Court

of Appeals held that the local long-arm

statute did and constitutionally could

consider the First Amendment activities

in the nature of petitioning the fed-

eral government in Washington, D.C. as

"transacting business" sufficient to

warrant being haled into court there.

But that holding squarely conflicts with

repeated authoritative holdings of the

D.C. Court of Appeals, and indeed, with

a long string of D.C. Circuit cases dat-

ing back to 1945 which the D.C. Court of

15

Court of Appeals has expressly approved. 2/

Moreover, read this way, the decision

drastically expands the jurisdiction of

the federal courts in the nation's capi-

tal; will drastically increase the suscep-

tibility of newspapers and non-profit,

public interest and advocacy groups

throughout the United States to costly

suit in a distant (and presumably less-

than-friendly) forum solely by reason

of their exercise of the right to peti-

tion; and will thereby burden the exer-

cise of the First Amendment right to pet-

ition the government in a way Congress

has never contemplated. Cf. Stafford v.

9 See infra at 35 n.24. Because there

Ss no reason to believe that the local

courts would seek to exercise personal

jurisdiction over claims where the only

business transacted consisted of First

Amendment petitioning activity, assuming

that they could constitutionally do so,

the Court of Appeals should not have up-

held jurisdiction even if it disagreed

with the D.C. Court of Appeals that the

government contacts exception is consti-

tutionally compelled.

16

Briggs, 444 U.S. 527 (1980). A decision

that the exercise of such a basic First

Amendment right is equivalent to consent

to be sued as the District of Columbia

in a cause of action related to such

petitioning activity surely merits this

Court's prompt and careful attention.

Finally, the decision below con-

flicts with the decisions of four cir-

cuits holding that the First Amendment

interest in protecting the free flow of

publications must be considered in deter-

mining whether the Due Process Clause

permits the exercise of jurisdiction over

an out-of-state publisher, and requiring

more substantial contacts than the mini-

mal circulation in the forum which is all

the plaintiff relies on here. If The

Irish People is amenable to suit in the

District of Columbia on the sole basis

of five or even fifty-five copies, with

no other forum-related contacts whatso-

17

ever, then nearly every newspaper in

every town in the United States (and

many published abroad) is amenable to

suit in the nation's capital simply by

reason of seeking to let the government

know its opinions, and in New York or

other cosmopolitan cities simply because

former hometown residents create a steady,

but extremely small and commercially ir-

relevant demand for news and opinion

from afar. Although neither the First

Amendment nor the Due Process Clause

bars holding a publisher, like anyone

else, amenable to suit where it "“pur-

posefully avails itself of the privilege

of conducting activities within the

forum state, thus invoking the benefits

and protection of its laws", Hanson v.

Denckla, 357 U.S. 235, 253 (1958),

minimal (and almost wholly unpaid) cir-

culation in a forum without more -- in

particular, without any expectation

18

of benefit based on its subscription

payments or advertising revenues -- hardly

amounts to the quantum of purposeful ac-

tivity and reliance on state protection

contemplated by the requirements of

Due Process, especially considering the

deterrent effect on First Amendment

interests.

I. THE DECISION BELOW, SUSTAINING

JURISDICTION IN A FEDERAL QUES-

TION CASE BEYOND THE LOCAL LONG-

ARM LIMITS INCORPORATED BY FED.

R.CIV.P. 4(e), CONFLICTS WITH

UNITED STATES v. FIRST NATIONAL

TY ’ U.S.

AND WITH DECISIONS OF THE COURT

OF APPEALS.

By its terms, Fed.R.Civ.P. 4(e),

which applies "in all suits of a civil

nature" in federal court ,22/ permits

10 Fed.R.Civ.P. 1. Rule 1 provides

t the federal rules “govern the pro-

cedure" in all cases in federal courts

without distinction. The Court has never

held a federal rule inapplicable even

in diversity cases governed by Erie

(footnote continued on following page)

19

permits federal courts to assert personal

jurisdiction over defendants in civil

cases only when authorized by "a statute

of the United States or an order of court

thereunder", or by “a statute or rule of

court of the state in which the district

court is held." Because there is no

federal statute arguably governing ser-

vice in this case, Rule 4(e) permits jur-

isdiction here only if authorized by a

local long-arm statute.

But decisions of the D.C. Court of

Appeals make clear that the only trans-

action of business from which the Attor-

(footnote continued from preceding page)

Railroad Co. v. Tompkins, 304 U.S. 64

T1938). See Walker v. Armco Steel Corp.,

446 U.S. 740, - 1980). A fortiorari,

it has never indicated that any of the

rules applies in diversity cases but not

in federal question cases. To our know-

ledge, the only Courts of Appeals to

have so ruled are the D.C. Circuit's im-

plicit holding in this case, and the Fifth

Circuit's identical decision in Terry v.

Ra nd International, 658 F.2d 398

(eth Cir. 1981), discussed infra at 25 n.15.

20

ney General's claim in this case is

asserted to arise -- the sending of 50

copies of The Irish People to members of

Congress2// _. cannot be considered as

transacting business within the meaning

of § 13-423(a) (1) .22/ This is so because

1l/ Although the record establishes a

small additional quantum of activity in

the forum by The Irish People, Inc. --

an additional five copies regularly sent

to paying subscribers -- the Attorney

General has not claimed, and could not,

that this case arises from that activity.

See Plaintiff's Statement of Points and

Authorities, reprinted in the Appendix

filed in the Court of Appeals (here-

after "A.") at 36; see also Reply Brief for

the Plaintiff-Appellant at 14-15 (rely-

ing solely on the fifty copies per week

directed to members of Congress.)

12/ The only provision of the D.C. long-

arm statute on which jurisdiction could

conceivably be based is § 13-423(a) (1),

which authorizes in personam jurisdiction

in this case only "as to a claim for

relief arising from the [defendant's] ...

transacting any business in the District

of Columbia." § 13-423(a) (1).

21

the government contacts doctrine which

provides that "entry into the District

of Columbia by nonresidents for the pur-

pose of contacting federal government

agencies is not a basis for the asser-

tion of in personam jurisdiction."

Environmental Research International,

Inc. v. Lockwood Greene Engineers, Inc.,

355 A.2d 808, 816 (D.C. Cir. 1976)

(en banc) (hereafter Lockwood Greene) .+3/

13/ As the D.C. Court of Appeals explained

in Lockwood Greene:

The rationale for the "govern-

ment contacts" exception to the

District of Columbia's long

arm statute ... finds its source

in the unique character of the

District as the seat of national

government and in the correlative

need for unfettered access to fed-

eral departments and agencies

for the entire national citizenry.

To permit our local courts to as-

sert personal jurisdiction over

nonresidents whose sole contact

with the District consists of

dealing with a federal instrumen-

tality not only would pose a

threat to free public participa-

(footnote continued on following page)

22

Accordingly, in personam jurisdiction

was proper in this case only if, not-

withstanding the failure of the local

long-arm statute to authorize jurisdic-

tion in these circumstances, the federal

court has inherent power to step outside

the confines of Rule 4(e) and to exercise

in personam jurisdiction to the limits

of the Fifth Amendment. The D.C. Circuit's

recent indications in other cases and

apparent holding in this case that it

(footnote continued from preceding page)

tion in government, but also

would threaten to convert the

District of Columbia into a

national judicial forum.

355 A.2d at 813. See also Rose v. Silver,

394 A.2d 1368, 1374 (D.C. 1978), reh. en

banc denied, 398 A.2d 787 (1979) (First

Amendment rationale, including right to

petition, for government contacts

octrine).

23

believes such power exists24/ and the

Fifth Circuit's recent decision to the

14 In SFW v. Kaiser, 647 F.2d 200, 204

D.C. Cir. 1981), the Court observed:

We note that in this case in-

volving alien defendants and some

federal claims, application of

the local long-arm statute "pro-

duce[s] perplexities" since the

statute was drafted from the point

of view of the District community,

not from the perspective of the

nation as a whole. Von Mehren &

Trautman, Jurisdiction to Adjudi-

cate: A suggested Analysis,

Harv.L. Rev. ’ n.6 (1966).

Under these circumstances, it

might be appropriate for the fed-

eral courts to disregard aspects

of the state statute and state

court interpretations of it that

do not fit the federal frame of

reference. See id. at 1125 n.6.

We need not take that step in

this case, however ....

Here, although the D.C. Court of Appeals’

government contacts decisions were

brought to its attention, the D.C. Circuit

wholly ignored them, predicating juris-

diction without reference to the local

long-arm statute and relying on the

district court opinion which had similarly

ignored the existence of any local rule

of competence. See infra Pet.App. 59a-69a.

24

same effect, 42/ stand in direct conflict

with the plain impact of this Court's

decision in United States v. First

National City Bank, 379 U.S. 365 (1965), and

decisions of six Courts of Appeals which

have held that there is no such power. 16/

15 In Terry v. Raymond International,

nce., 658 F.2d 398 (5th Cir. 1981), the

Fifth Circuit held that personal juris-

diction over an out-of-state defendant

in a federal action based not wholly on

diversity does not depend on the amena-

bility of the defendant to suit under a

state long-arm statute. The Court reached

this result by relying solely on Rule

4(d) (7), which permits (in-state) ser-

vice “in the manner prescribed by the law

of the state in which the district court

was held" and by ignoring Rule 4(e), which

authorizes out-of-state service only

“under the circumstances and in the manner

prescribed” by a state statute. As lead-

ing commentators have long observed, the

Fifth Circuit's analysis is simply wrong.

See 4 Wright & Miller Federal Practice

& sage v9 1075, 1 °

re's Federal Practice {{

4.32[1- 2), 4.41-IT1) (1982 ed.)

3S/ See, e.g., Marsh v. Kitchen, 480 F

1270 (2nd Cir. 1973); DeJames v.

Magnificence Carriers, Inc., 654 F.2d

380 Cire Cir, 1981); Gkiafis v. s.s.

Yiosnas, 342 F.2d 546 (4th Cir. 1965);

Tfootnote continued on following page)

25

In United States v. First National

City Bank, supra, a federal question

case, this Court's decision that a bank

could be enjoined from transferring

assets of a non-party taxpayer was based

on its determination that the taxpayer

was amenable to the jurisdiction of the

district court. In making that deter-

mination, the Court exclusively on Rule

4(e) and the long-arm statute of the

state where the district court sat. 379

U.S. at 381-83; see also id. at 390

(Harlan, J., dissenting). That reliance,

unquestioned by any member of the Court,

and the failure of the Court to attempt

to justify jurisdiction on a federal

basis independent of the state long-arm

(footnote continued from preceding page)

Webber v. Michela, 633 F.2d 519 (8th

Cir. 1980); Wells Far & Co. v. Wells

Far Express Co., 35e F.2a 406 (Sth

Ci 1579}; Ba

r. rr v. United States, 478

F.2d 1152 (10th Cir. 1573). The other

five circuits do not appear to have

decided the question.

26

statute which would have avoided the

difficult assumptions regarding New

York law on which the Court was forced

to rely, stand in direct conflict with

the decisions below, predicating personal

jurisdiction to the limits of due process

regardless of the absence of a federal

statute authorizing such service and of

express limitations in governing state

long-arm statutes .2//

The conflict between the decision

below and the Fifth Circuit's decision

in Terry, on the one hand, and First

National City Bank, the decisions of six

circuits, and the views of leading com-

mentators, on the other , 28/ raises an

es In Perkins v. Ben t Consolidated

n

n Co., we ’ me

this lert noted that states have no

obligation to extend their rules of com-

petence to the limits of due process.

18/ See supra 25 n.15.

27

issue of fundamental importance. Federal

courts are, axiomatically, courts of

limited jurisdiction. This Court has

zealously policed the jurisdictional

limitations Congress imposed, declining

to uphold, for example, the exercise of

judicial power to add pendant parties

as to whom no basis for federal juris-

diction exists. See, e.g., Moor v.

County of Alameda, 411 U.S. 693 (1973).

Moreover, the Court has stressed that

the personal liberty protected by due

process limitations on in personam

jurisdiction should be infringed only

after legislative -- not merely judicial --

decision to do so. See, e.g., Shaffer

v. Heitner, 433 U.S. 186, 214-16 (1977).

Cf. Stafford v. Briggs, 444 U.S. 522,

545 (1980) (stressing need for clear

statement by Congress before Court will

28

exceed traditional venue requirements) .22/

Were the theory relied on below and

in the Fifth Circuit adopted, the basic

two-fold requirement followed by all

American jurisdictions that in personam

jurisdiction be both statutorily auth-

orized and within constitutional limits

would be fundamentally altered. The

only test would be one of constitutional

power. Federal courts would exercise

in personam jurisdiction over any defend-

ant with “minimum contacts" with the

sovereign -- i.e., with the United States;

13/ Insurance Co. of ireland . Companie

Bauxite de Guinea, L.Ed.2d 492

(1982) is not to the contrary. Assuming

that the facts were as plaintiff trom fi

the legislature had authorized jurisdic-

tion, and the facts were deemed admitted

under sanctions approved by Congress

through the Rules Enabling Act under a

theory of "constructive waiver" or

"presumption" of jurisdiction. That

theory, of course, is unavailable to

plaintiff here.

29

the only meaningful restraints on a

court's power to summon a defendant

in a federal question case would be

the venue requirements; and a host

of federal ‘statutes expressly providing

for nationwide service of process

would be rendered superfluous .22/

Certiorari should issue to review and

reverse the judgment below.

II. THE DECISION BELOW, UPHOLDING JURIS-

DICTION NOTWITHSTANDING THE FIRST

AMENDMENT BASED GOVERNMENT CONTACTS

EXCEPTION TO THE D.C. LONG-ARM

STATUTE, CONFLICTS WITH CONTROLLING

DECISIONS OF THE D.C. COURT OF

APPEALS AND PRESENTS A FEDERAL

QUESTION OF EXCEPTIONAL IMPORTANCE.

Because the decision below resolved

the jurisdictional question so cryptically,

it is impossible to be sure quite what

theory it relied on. If, contrary to

our submission above, the court did

not rely on an inherent district court

20/ See 2 Moore's Federal Practice

7 4.33 (1982 ed.)

30

power to exercise in personam jurisdic-

tion in federal question cases despite

the limitations of Rule 4(e), then it

must have decided that the D.C. long-

arm statute does, and constitutionally

can, consider the 50 newspaper copies

provided to congressmen as sufficient

“transacting business" to satisfy both

statutory and constitutional require-

ments. If that is the court's holding

it conflicts squarely with controlling

statutory decisions of the D.C. Court

of Appeals, and presents a federal

question bearing on the administration

of justice in the federal courts in the

nation's capital of exceeding importance.

A. The Conflict With The D.C. Court

Of Appeals Concerning The Govern-

ment Contacts Exception.

The conflict between the deci-

sion to uphold jurisdiction here based

on the sole claim-related activity of

31

mailing 50 copies of The Irish People

to congressmen at the Capitol 2i/ and

applicable decisions of the D.C. Court

of Appeals could hardly be plainer. 22/

That decision represents such a depar-

ture from the obligation to follow those

21/ As demonstrated supra at n.21 n.1l,

the Attorney General has made no asser-

tion that his claim "arises from" the

additional five copies sent to indi-

vidual subscribers in the District.

Such a claim would grotesquely expand

the jurisdiction (and venue) applicable

to FARA claims, giving the Attorney

General a choice of any forum in the

nation for any FARA claim where a news-

paper or other communication had been

distributed. There is, of course, no

indication that Congress ever suggested

a result with such potential for

harrassment. Cf. Stafford v. Briggs,

Supra.

22/ See, e.g., Lockwood Greene, supra,

355 A.2d at 813-16; Rose v. Silver,

394 A.2d 1368 (D.C. 1978), reh. en banc

denied, 398 A.2d 787 (D.C. 1979); and

the federal cases cited with approval

in Lockwood Greene, 355 A.2d at 813

n.9.

32

decisions in these circumstances as to

call for this court's supervisory review.

See, e.g., Thermtron Products v.

Hermansdorfer, 423 U.S. 336 (1976); Hanna

v. Plumer, 380 U.S. 460 (1965). This is

not simply a conflict concerning a fine

point of state law; instead, the D.C.

Circuit has boldly ignored the local

law Rule 4(e) obligates it to apply,

namely the local long-arm statute with

its repeatedly affirmed government con-

tacts exception. Moreover, it has done

so because of that court's apparent

disagreement with the policy behind

the doctrine, that permitting “our

local courts to assert personal juris-

diction over nonresidents whose sole

contact with the District consists of

dealing with a federal instrumental-

ity ... would threaten to convert the

District of Columbia into a national

33

0 23/ f. De James v. Magnificance

forum.

Carriers, Inc., 654 F.2d at 284 (noting

incongruity of limiting in personam

jurisdiction in admiralty case to

Fourteenth Amendment due process con-

straints applicable to forum state's

long-arm statute, but observing that

Congress is free to rectify the anomaly

by authorization for nationwide service

of process). There should be no

confusion concerning the duty of the

federal courts strictly to apply estab-

lished local long-arm law in cases

where Rule 4(e) adopts that law. This

case presents the Court with appropriate

occasion for reaffirming that duty.

23/ Lockwood Greene, 355 A.2d at 813.

The D.C. Circuit's Opposition to that

policy is particularly inappropriate

here, since Congress has not designated

the federal courts in Washington, D.C.

as an exclusive or always-permissible

forum for FARA actions, a course it is

perfectly capable of following where

it sees the need to do so. See, e.g.,

47 U.S.C. §§ 402, 504; 42 U.S.C.

§ 1973c; 28 U.S.C. 2343.

34

B. The Conflict With The D.C. Court

Of Appeals Concerning Whether The

Government Contacts Doctrine Is

Constitutionally Compelled By The

First Amendment.

The judgment below necessarily

(albeit implicitly) held that the govern-

ment contacts doctrine is not required

by the First Amendment. That holding

stands in sharp conflict with the D.C.

Court of Appeals’ decisions that the

government contacts exception is con-

stitutionally required to avert "a

threat to free public participation in

government." Lockwood Greene, 355 A.2d

at 813; see also id. at n.11.24/

24/ As the Court subsequently explained

In Rose v. Silver, 394 A.2d 1368, 1374

(D.C. 1978) (contact with FDA), the

exception is necessary to “protec([t]

one's right to petition the government

for a redress of grievances, without

fear of the threat of suit if their

contacts were limited to asserting that

constitutional right." For cases ap-

plying the doctrine, see, e.g.,

Lockwood Greene, supra (entering the

District to confer with the EPA);

Mueller Brass Co. v. Alexander Milburn

(footnote continued on following page)

35

Like the First Amendment-based news-

gathering exception to the local juris-

dictional statutes from which the govern-

ment contacts exception has grown ,2>/

the government contacts doctrine pre-

vents those who maintain contacts in

(footnote continued from preceding page)

Co., 152 F.2d 142, 143 (1945) ("gather-

ing information from Government depart-

ments and agencies"); Traher v. De

Havilland Aircraft of Canada, Ltd.,

° 61), cert. denied, 368

U.S. 954 (1962) (contact with government

and armed forces); Fandel v. Arabian

American Oil Co., 345 F.2d 87 (D.C.

Cir. 1965) (contact with State Depart-

ment); Margoles v. Johns, 483 F.2d 1212

(D.C. Cir. 1973) (maintenance of report-

ers in district for newsgathering); Siam

Kraft Paper Co., Ltd. v. Parson &

Whittemore, inc., 400 F. Supp. 810

(D.D.C. 1975) (taking advantage of

services offered to foreign investors

by government agencies), aff'd men.,

521 F.2d 324 (D.C. Cir. 1975). Each

of these cases has been cited with

approval by the District of Columbia

Court of Appeals. See Lockwood Greene,

355 A.2d at 813 n.9.

25/ See Mueller Brass Co. v. Alexander

Milburn Co., supra, 152 F.2d at 143-44.

36

the District solely for First Amendment

reasons and who transact no other busi-

ness here from consenting ipso facto to

being sued here. It is based

in the unique character of the

District as the seat of national

government and in the correla-

tive need for unfettered access

to federal departments and agen-

cies for the entire national

citizenry.

Lockwood Greene, 355 A.2d at 813.

Resolution of the conflict between

that principle and the judgment below

is vital because leaving the judgment

below intact will severely impact

First Amendment rights and interests

of citizens seeking to give advice to

the government, or to receive informa-

tion or to seek relief from it. This

Court has recently canvassed the burdens

of forcing litigants to defend civil

lawsuits “in distant districts", Stafford

v. Briggs, supra, holding that Congress

should not be held to have done so

37

without a clear statement of such intent.

The burdens found significant in Stafford,

however, where the government had under-

taken to represent former-official

defendants in lawsuits based on their

actions while in office, pale in com-

parison with those the judgment below

will place on all those, including news-

papers, non-profit associations of

diverse sorts, and even states, whose sole

presence here consists of speaking

with the federal government and who will

be forced to engage and pay for D.C.

counsel (often at rates far exceeding

rates in distant localities) to defend

lawsuits brought here under the D.C.

Circuit's insupportable decision. More-

over, the jurisdiction of the federal

courts would drastically expand: any

contact with Congress, a federal agency,

or the Executive branch will henceforth

subject a distant citizen to civil suit

38

here on a related claim, despite con-

gressional refusal to designate the

District of Columbia as available

forum in all civil cases involving the

federal government's Washington, D.C.

operations. Such a result is wholly

inconsistent with Congress’ decision to

permit such groups to sue the govern-~

ment for review of governmental actions

in their own places of residence, and

to free them from having to bring suits

in Washington, D.C. Stafford v. Briggs,

supra. Congress would hardly have

waived sovereign immunity tc be sued

in distant locales on grounds of fair-

ness to private plaintiffs, while requir-

ing citizens to shoulder the burden of

defending at the government's convenience

in Washington, D.C. every action in

which their contacts with the govern-

ment at the nation's capital, no matter

how minimal, are involved. Moreover,

39

with particular respect to FARA actions,

the decision below permits the govern-

ment to oppress any person alleged to

be a foreign agent who has influenced

(or attempted to influence) the govern-

ment in Washington, D.C. by suing him

or her here, regardless of the burden

of such distant suit or congressional

failure to designate the District of

Columbia as an exclusive or available

forum in all FARA cases.

This Court has frequently recog-

nized that the First Amendment right

to petition every branch of the govern-

ment is entitled to the most rigorous

protection from undue governmental

restrictions, and that this right in

particular “needs breathing space to

survive.” NAACP v. Button, 371 U.S.

415, 433 (1963); see also Eastern

Railroad Presidents Conference v.

Noerr Motor Freight, 305 U.S. 127, 137

40

(1961); United Mine Workers v. Illinois

State Bar Association, 389 U.S. 217, 222

(1967). Although Noerr Motor's holding

that petitioning activity cannot be the

basis for antitrust liability regardless

of intent was cast in statutory terms,

it was strongly influenced by constitu-

tional doctrine, and both this Court 28/

and other courts— 27/ have derived from it

a broad principle that civil liability

can never constitutionally be predi-

cated on petitioning activity, regard-

less of intent.

Even if the compelling interest

26/ United Mine Workers of America v.

Pennington, 381 U.S. 657, 679 waged.

Ca Ornia Motor Transport Co. v.

Trucking Unlimited, 404 U.S. (1972).

ail See, e.g., Missouri v. National

anization for Women, 620 F.2d 1301

eth Cir.), cert. denied, 449 U.S. 842

(1980); Feminist Women's Health Center,

Inc. v. Mohammad, 586 F.2d0 530 (5th

Cir. 1978), cert. denied 444 U.S. 924

(1979).

41

test were applicable here, rather than

the "no liability” principle based on

Noerr, there is simply nothing resembl-

ing a compelling reason for this defend-

ant (or others whose sole contact with

the District is activity protected by

the right to petition) to defend fed-

eral statutory cases in every district

where they exercised First Amendment

rights concerning the statute.

If the right to petition is viewed

not as an independent reason not to per-

mit jurisdiction under these circum-

stances but rather as one of the con-

siderations of reasonableness and fair-

ness which are subsumed under the due

process analysis, the result is the same.

There is no sense in whch The Irish

People, or anyone else whose sole con-

tact consists of contacting the federal

government, has availed itself of the

benefits and protections of the local

42

forum's laws. The point is seen most

clearly by the facts here, since The

Irish People could as easily have sent

the copies to the congressmen at their

district offices rather than in the

Capitol. That The Irish People, Inc.

or any other entity engaging in peti-

tioning communications happen to have

sent their publications to one address

rather than another does not create an

interest in either local forum --

Washington, D.C. or a congressman's

home district -- in adjudicating a

statutory obligation such as arises in

this case. Cf. Kulko v. Superior Court,

436 U.S. 84 (1978) (letter sent to forum

state insufficient basis for jursidiction

where no other contacts or forum inter-

ests present).

In short, whether it is viewed as

a right stemming directly from the

First Amendment or as a part of due

43

process analysis informed, as circum-

stances require, by First Amendment con-

siderations, see, e.g., Zurcher v.

Stanford Daily, 436 U.S. 537 (1978);

Roaden v. Kentucky, 413 U.S. 496,

504 (1973), the government contacts doc-

trine is constitutionally required to

avoid undue burdens on First Amendment

rights. The Court of Appeals’ judgment,

which ignores these considerations,

should be reviewed and reversed.

III. THE DECISION BELOW, BASING

JURISDICTION SOLELY ON MINIMAL

CIRCULATION IN THE FORUM, CON-

FLICTS WITH DECISIONS OF FOUR

CIRCUITS PRECLUDING SUCH JURIS-

DICTION ON FIRST AMENDMENT

GROUNDS.

The decision below also conflicts

with decisions of four circuits holding

that the First Amendment interest in

protecting the free flow of publications

must be considered in determining whether

the Fourteenth Amendment permits the ex-

44

ercise of personal jurisdiction over an

out-of-state publisher, and requiring

more than the minimal circulation in the

forum which is all plaintiff relies on

here. 28/ If The Irish People is amen-

able to this FARA action by the Attorney

28/ See Keeton v. Hustler Magazine,

Inc., 682 F.2d 33 (ist Cir. l 382);

Buck v. New York Post Corp., 373

F.2d Ls (2d Cir. 1967); New York

Times Co. v. Connor, 365 F.2d 567

(5th Cir. 1966); Cox Enterprises

v. Holt, 678 F.2d 936 ilith Cir.

- See also McCabe v. Kevin

Jenkins and Associates, 531 F. Supp.

-D. Pa. - Without ex-

press mention of the doctrine, the

D.C. Circuit had previously affirmed

a lower court decision applying it.

Margoles v. Johns, 333 F. Supp. 942,

946 1-D2C 1971), aff'd., 483 F.2d

1212 (D.c. Cir. 1973).

Although the Second Circuit in

Buckley approved the doctrine, it

eld, on the facts of that case, that

jurisdiction over the New York Post

in Connecticut was permissible. See

also Arrowsmith v. United Press

International, 320 F.2d 219 (2d Cir.

).

45

General solely by reasons of five or

even fifty-five copies distributed in

this district, then nearly any publisher

who distributes a publication here

even on an extremely limited basis, and

every organization which sends books,

leaflets or other publications to mem-

bers of Congress or officials in the

Executive branch in limited numbers in

the District, can be haled into the

District of Columbia on nearly any cause

of action related to such publications.

Moreover, the same First Amendment problem

exists with the wide range of newspapers

and other publications from literally

thousands of communities and organiza-

tions throughout the nation (and indeed,

well beyond) which are sent in extremely

limited numbers to distant forums

without expectation of substantial

commercial gein, merely hecause of the

cosmopolitan nature of the populace,

46

or the nature of the work they engage

in. Im our judgment, it is inconceiv-

able that the First Amendment, or this

Court, would have permitted the govern-

ment to choose to assert in personan

jurisdiction in The Pentagon Papers

cases in any community in the UMmited

States where 55 copies of the New York

Times, the Washington Post or the Boston

Globe were distributed; or that the

Sacramento Bee or Le Monde are amenable

to suit in New York merely because a few

dozen former residents of California or

Paris residing in New York receive

those papers there.

If in personam jurisdiction is held

constitutionally present in this case,

the burden on and consequent risk of

chill to the widest possible dissemina-

tion of information would be severe.

See generally New York Times Co. v.

Connor, 365 F.2d 567 (5th Cir. 1966).

47

Where, as here, a newspaper or other

purveyor of First Amendment material is

not shown to have made any “effort to

exploit or penetrate the state market

beyond making the paper available to a

few readers in the state who may have

an interest in it", Holt, supra, 678

F.2d at 939, or to have either soli-

cited advertising or sought to profit

from its national advertisers by maxi-

mizing circulation generally ,22/ and

has no other contacts with the forun,

29/ In Curtis Publishing Co. v. Golino,

393 F.2d 586 (5th Cir. “T367} the Fifth

Circuit upheld jurisdiction on this

ground. The district court below

erroneously attempted to analogize the

facts of this case to Golino (Pet. App. 66a-

68a) but Golino is inapposite. Unlike

the national magazine at issue there,

The Irish People has no incentive based

on the nature of its advertisers or its

financial arrangements with them to

increase its share of or exploit the

District of Columbia market and has not

in fact attempted to do so.

48

First Amendment interests have been

found by four circuits, and should be

held by this Court, to preclude the

exercise of in personam jurisdiction.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari

should be granted.

Respectfully submitted,

CHARLES S. SIMS,

Counsel of Record

BURT NEUBORNE

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Date: November 23, 1982

49