1:56pm PT by Eriq Gardner
Melania Trump, Daily Mail Spar Over Location of Her Libel Lawsuit
The presidential election that resulted in Donald Trump's victory was unusual for a host of reasons. One of the many curious stories to appear related to whether his Slovene-born wife, Melania Trump, worked in the United States in the 1990s without a proper visa. Then came an even more bizarre story that connected Ms. Trump, a former model, to an escort agency. For that, Mail Media, parent company of the The Daily Mail, as well as a blogger named Webster Griffin Tarpley found themselves as defendants in a libel lawsuit.
The action was filed in Maryland, and now both sides are fighting over whether the lawsuit from Ms. Trump, who became a U.S. citizen a decade ago, really belongs in the state. Sometimes, jurisdiction is one of those dry procedural issues of law that glazes one's eyes. But this one deserves attention.
Trump is represented by Beverly Hills attorney Charles Harder, who found success in a Florida state court (after initially experiencing a setback in a federal one) against Gawker in the Hulk Hogan sex tape case. In an interview with THR last September, Harder admitted to having charts in his office mapping the differences in libel and privacy laws throughout the country. But there's more to the tactical game of litigation. Various states also have anti-SLAPP statutes that can sometimes result in plaintiffs having to pay defendants their legal fees in frivolous lawsuits that arise from First Amendment activity. Some jurisdictions have heavy case loads that move slowly, while other courts move at a more brisk pace. Not to be ignored, some judges have lifetime appointments, while others get on the bench through elections. That might be of importance in a case receiving the public spotlight.
In other words, it's no small deal where a lawsuit gets filed, and so when Harder filed this lawsuit in Maryland, naming one local blogger few had ever heard of as a co-defendant, one can presume he saw some advantage to the location. But was it proper? Can media outlets, now publishing widely, be dragged into the most inhospitable forums? If so, constitutional principles limiting public figures in lawsuits might take a back seat to other factors impacting the adjudication and outcome of a case.
Mail Media is now arguing it has no business in a Maryland court over a story headlined, "Naked photoshoots, and troubling questions about visa that won't go away: The VERY racy past of Donald Trump's Slovenian wife."
In a recent motion to dismiss, the publication's attorneys Kelli Sager and Lisa Zycherman argued that Ms. Trump's complaint doesn't contain any allegations connecting the disputed escort article to Maryland. They pointed out that she's a New York resident and that Mail Media doesn't have any office, any employees, or any other connection to Maryland. They also tell the judge of no association whatsoever with Tarpley (who attempted unsuccessfully to sever claims after the filing of the suit).
"Instead, the only connection between Maryland and Plaintiff's lawsuit against MMI is that the MailOnline website is accessible free of charge in Maryland, as it is in every other state in the U.S. (and virtually the entire world)," they wrote. "But this is not enough to satisfy strict constitutional requirements of due process, which limit a court's ability to exercise jurisdiction over foreign residents. To the contrary, courts consistently have rejected the notion that a web publisher can be sued for libel in any location where the site can be accessed, regardless of whether the forum is connected to the parties or the lawsuit in any other way."
Trump, in an opposition brief filed Tuesday, spins it another way.
"MailOnline is an international tabloid news publication, with its largest audience in the United States," states the brief. "MailOnline is read by millions of Americans each day. There are approximately 72,600 daily visitors to MailOnline from Maryland and 4,500 MailOnline articles are viewed by Maryland residents each hour. MailOnline earns revenues primarily from advertising. These revenues are based, in part, upon advertisements from Maryland-area businesses, directed to people in Maryland..."
There's a long line of cases throughout the nation about the issue of jurisdiction and how to interpret in the digital age where actions are directed or targeted. Both sides point to past decisions in their favor.
Mail Media alternatively argues that Maryland isn't the most convenient forum for the lawsuit.
As the motion puts it, "This lawsuit arises from an article about controversial questions that were raised about Plaintiff's past, including the timing and circumstances of her immigration to New York from Slovenia; when she first met her husband, President-elect Donald Trump; whether she worked in New York without the proper visa; and the nature of her early modeling career in New York. The majority of relevant witnesses and evidence in this case are located in New York, and not a single witness or piece of evidence is in Maryland."
In other words, Mail Media prefers the lawsuit take place in New York. (It should be noted that while New York has an anti-SLAPP statute, it's a rather narrow one that relates to land use. Then again, as the media capital of the country, judges there are probably more familiar with libel disputes.)
Trump retorts that Tarpley is located in Maryland, and thanks to the overlapping subject matter claiming that she once worked as an escort, "there are extensive common issues of law and fact and judicial efficiency will be served by litigating the two actions together and obtaining one definitive adjudication on the central issue of whether these statements were defamatory."
The prospect of Trump in the White House, a landmark that's a short drive away from Maryland (commuters in the area may disagree), arguably could also make the "Free State" convenient for her in some fashion, although it's been reported that the future first lady won't be moving there immediately after the inauguration so that her son can continue private schooling in New York. Nevertheless, Ms. Trump did show up in a Maryland courtroom for a fairly routine procedural hearing in December. The next one comes at the end of the month where both sides will present oral arguments about whether this lawsuit really belongs in Maryland.