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Bitch-SLAPP

Justin Kurtz was pissed.  T&J Towing had hauled his car away from his apartment complex, and so he created a Facebook page called "Kalamazoo Residents against T&J Towing."  That landed him in court:  T&J, claiming that the site was hurting their business, filed a $750,000 defamation suit against Kurtz.

Scott Roberts was pissed, too.  He'd purchased a Pontiac engine block from Kauffman Racing Equipment, but concluded that it was defective, and vented his spleen by posting caustic criticisms of KRE  on various Internet websites.  That got him sued, too; KRE filed a complaint alleging defamation and intentional interference with contracts.

One big difference.  In Kurtz's case, everything is local.  Roberts, though, is a resident of Virginia, and KRE's suit was filed here in Ohio, where the company is located.  And yesterday in KRE v. Roberts, the Ohio Supreme Court decided by a 4-2 vote that Roberts will have to come up here to defend the lawsuit.

The case, of course, turns on the issue of personal jurisdiction, which involves two questions, one procedural and one constitutional:  (a) does Ohio's long-arm statute confers jurisdiction, and (b) would the exercise of jurisdiction violate due process principles?   The court's essential answer is (a) yes, because Roberts' conduct caused "tortious injury" in this state (the damage to KRE's reputation), and (b) no, because Roberts' conduct clearly made it foreseeable to him that he could be made answerable to it in an Ohio courtroom.

The wisdom of this result is another matter, and there's much here to remind one of the aphorism that hard cases make bad law.  Unlike Kurtz, who was truly wronged -- his car was towed despite the fact it was legally parked, and everyone he contacted at the company, up to and including the president, seems to have been a Primo Asshat -- Roberts' grievance appears more contrived.  There's good cause to believe that the defects of which Roberts complained were actually the result of modifications which he admitted making to the engine block, and he wasn't shy about broadcasting on the various web sites that his goal in criticizing KRE was to cause them to lose business.

But that's the real purpose of any criticism of business; when I tell people that I wouldn't walk into a Sears store at gunpoint because of how they botched a kitchen remodeling job twenty years ago, I'm not doing it to share a human interest story.  The net result of Roberts is that an Ohio court has acquired jurisdiction over him because five -- count'em, five -- people in Ohio told KRE that they'd read Roberts' stuff on the Internet. 

The court accomplishes this result first by deciding that the fact this took place on the Internet shouldn't matter in its consideration of "traditional" jurisdictional principles.  It does cite the Zippo test, named for a US District Court case in Pennsylvania, as one method of determining this issue, then quickly abandons it, agreeing with Roberts' contention that the test was employed to resolve business-to-business issues.  The court then relies primarily on a 1984 US Supreme Court case upholding California's jurisdiction over a slanderous article about a California actress which was published in the National Enquirer; the Court there rejected the Enquirer's contention that it could not foresee being haled into a California court, noting that the publication had its highest circulation in that state.  It is left to Justice O'Donnell in his dissent to point out the dissimilarities:  the Enquirer at the time had a circulation of 600,000 in California.  One of the reasons I went to law school is that they promised there wouldn't be any math, but even I know that 600,000 is more than 5.

O'Donnell also hints at the larger issue, which of course was premature for consideration here:  the First Amendment.    Outrageously false claims  about  businesses are hardly novel; Proctor & Gamble has fought for decades to defuse the rumor that the picture at right is an artist's rendition of one of their shareholder meetings.  In recent years, though, companies have become much more aggressive in protecting their image, to the extent of filing lawsuits against those who have the temerity to complain about them.  This reached its apogee when Texas cattle ranchers sued Oprah Winfrey for $12 million because she'd hosted a vegetarian on her show who predicted that the US was in danger of having a mad cow disease epidemic.  In fact, lawsuits by businesses intended to stifle criticism have become so commonplace that, like everything else in America, they have their own anagram:  SLAPP, for "strategic lawsuit against public participation."

But while Oprah could probably scrounge enough change from under her sofa cushions to hire a lawyer or two, most of the people on the receiving end of such suits aren't as fortunate.  And that's the whole point of the suit:  to intimidate them into silence.  So prevalent has the problem become that twenty-six states have passed anti-SLAPP laws, which allow such suits to be more easily dismissed, and require plaintiffs to pay the defendant's attorney's fees in that event.

You'll probably not be surprised to know that Ohio isn't one of them.  This isn't to suggest that KRE's action would have fallen under the aegis of an anti-SLAPP statute.  It may well be that they have been honestly wronged.  But the basic holding of Roberts is that an Ohio corporation can sue a citizen of another state here in Ohio if the citizen has had the temerity to publish any public criticism of the business, so long as the business can drum up a few people to claim they heard of it.  That's a powerful weapon, and an anti-SLAPP statute would go a long way toward putting some balance in the scales between what is usually a David/Goliath encounter in any event.

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