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Once upon a time before social distancing became a thing, the nation was momentarily obsessed by a group of high school students coming face-to-face with Native American activists at the foot of the Lincoln Memorial. In particular, the image of one student in a “Make America Great Again” hat looking at Native American elder Nathan Phillips sent social media into a tizzy. The Jan. 18, 2019, “incident” triggered discussions of incivility, of rushing to judgments and finally of repercussions. The legacy of that day continues. On Thursday, comedian Kathy Griffin slipped one of the many lawsuits that followed for her minor role on Twitter, where she demanded names and shame upon the Covington High School students.
U.S. District Court Judge William Bertelsman holds that Griffin’s attempted doxing doesn’t constitute acts committed in Kentucky and thus she’s not subject to the jurisdiction of this federal court. In dismissing the suit, the judge adds that allowing Griffin to be sued in Kentucky for her postings “would also violate basic fairness or due process.”
The dismissal of this suit on jurisdictional grounds is perhaps a promising sign for other journalists and media outlets still facing litigation. Other suits raise libel claims for statements about what Nick Sandmann and other Covington Catholic students were doing that day in Washington, D.C., but the suit against Griffin brought claims of civil harassment and invasion of privacy. The suit was filed by 10 students (some via parents and guardians).
After the Covington student incident went viral (and given the coronavirus epidemic, apologies for that term), Griffin tweeted, “Name these kids. I want NAMES. Shame them. If you think these fuckers wouldn’t dox you in a heartbeat, think again.”
Griffin followed up several times thereafter, telling followers they “should let this fine Catholic school [CCH] know how you feel about their students behavior toward the Vietnam veteran” and exulting that her communications had “triggered lot of verrrry threatened bros. Yummy. It’s delicious.”
In a subsequent motion to dismiss, the comedian characterized her tweets as “classic expressions of opinion about a newsworthy matter of public concern” and further argued that holding her liable for vaguely being menacing in speech would violate the First Amendment.
But Judge Bertelsman doesn’t get to the substance of the claims and whether Griffin’s posts are tortious because the suit, he concludes, doesn’t belong in his courtroom.
The Covington students posited that a Kentucky court had jurisdiction over Griffin because she called for Kentucky citizens to take actions against them. But the judge heeds precedent standing for the proposition that a defendant must be present in Kentucky when starting an action that causes a tort.
The plaintiffs attempted to carve out an exception for “true threats,” but Bertelsman finds the arguments unavailing, particularly in the non-criminal context.
With some expectation that this case might witness appellate review, the judge also tackles the question of whether allowing this suit to move forward would comport with due process.
“It is a mere fortuity that plaintiffs are residents of Kentucky as it relates to their claims,” states the opinion. Griffin “never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Kentucky. Plaintiffs are defendant’s only connection to Kentucky for purposes of their claims, and Walden makes clear that that is insufficient to allow her to be sued here.”
Read the opinion here in full. It’s possible that the plaintiffs attempt to bring their claims in a different state.
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