# Petition — Irish People, Inc. v. Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1172

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1217%3A1. Public record. Not legal advice.