Freedom of SpeechFreedom of speech is a cornerstone of American culture.  But freedom of speech has limits.  We don’t have the freedom to defame others, for example.[1]  This limitation on free speech extends to the internet.  That means that the blog you create, your business’s website, a comment you  leave, or maybe even an internet review on a website such as could get you sued, maybe even if you post anonymously.  But could it get you sued in another state?  That’s a question BFS Law Group has been grappling with in a case that is currently before the Texas Supreme Court: when can an individual or a business sue in Texas to find out the identity of an anonymous internet poster who does not live in Texas?

Generally, a court in any state can only maintain a lawsuit against an individual when the individual is either a resident of the state or has “minimum contacts” with the state and the court can have the individual into court without violating “fair play and substantial justice.”  The landmark United States Supreme Court case International Shoe v. Washington laid out the constitutional requirements for a court to assert personal jurisdiction over an individual.

The world has changed, though, and the internet poses particular challenges for jurisdiction.  On the internet, we do business  and communicate interactively with individuals and companies across the country and the world.  Because of the internet, a click of the mouse in Texas could, for example, result in harm to someone in Rhode Island.  Can the Rhode Island resident force the Texas resident to come to court in Rhode Island?

The answer to this question is, as is often the case in the law, “it depends.”  Courts addressing whether to exercise jurisdiction over an individual based on internet activity look at “the nature and quality of commercial activity that an entity conducts over the Internet.” Mink v. AAAA Development LLC, 190 F. 3d 333 (5th Cir. 1999) (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)).  On one end of the spectrum is “repeated transmission of computer files over the internet,” where jurisdiction is proper. Zippo, 952  F. Supp. at 1124.  On the other end of the spectrum are passive websites that do nothing more than advertise; here, jurisdiction is not proper. See id.  When the facts are somewhere between these two extremes, determining whether a defendant can be sued in a particular state is complex.

The case Blume, Faulkner & Skeen has briefed to the Texas Supreme Court is unique in that the question is not whether a plaintiff can sue a defendant based on internet activity, but whether an individual can compel an internet service provider to disclose a blogger’s identity based on internet activity when the defendant is not a Texas resident.  This is a question of first impression in Texas, and it has the capacity to change the shape of the law for internet users in Texas and beyond.


[1] Note: defamation is a very complex area of the law and it is beyond the scope of this article to describe the elements of a lawsuit for defamation.

This post was written by
Claire E. James, Associate.


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