Defendant's contacts with Pennsylvania in this case were neither initiated by the defendant nor arose from the purpose of defaming plaintiff. The principal defamatory impact, if any, at least in quantitative terms, lies presumably in California, the state in which over ninety percent of the magazine's subscribers reside.
Third, a three person company with small circulation and low revenues, cannot be said to have injected its product into interstate commerce so as to make it "reasonably foreseeable" that it should be haled into court in any jurisdiction in which a few of its copies were mailed. See Jacobs, 493 F. Supp. at 48 ("defendant is not a large corporation which intentionally places its product in interstate commerce for the purpose, or at least the expectation that it will be purchased in whatever state it may find itself"). In short, defendant has apparently done everything within its power to ensure that it cannot be sued in the Commonwealth of Pennsylvania, short of refusing to sell copies of its magazines to Pennsylvania citizens. No court of which I am aware has insisted that a defendant affirmatively eliminate all connections with the forum in order to avoid being subjected to its jurisdiction.
Finally, defendant's home state, California, has a strong "interest in protecting its citizens from distant, possibly harassing litigation." World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S. Ct. at 564.
As noted above, on the facts of this case, if I were to balance KJAI's interest against the interest of the forum state (which, in turn, must be counterbalanced against the constitutional concept of fundamental fairness and the defendant's own state's interest in protecting its citizens from distant litigation), I would be presented with an extremely close question under the due process standards elucidated above. One additional consideration present in this case, however, tilts the scales decisively in defendant's favor. This additional consideration is the first amendment to the United States Constitution and it is raised by the facts of this case because defendant KJAI is the publisher of a magazine.
The chilling effect that imposition of jurisdiction over any publisher would have on the free exercise of first amendment rights mandates a subtly different due process analysis. If a publisher stands in peril of being haled into court in any jurisdiction simply because a citizen of that jurisdiction came into possession of one of its publications, no speech would be disseminated beyond the territory in which the speaker can afford to litigate. Thus, if courts freely found in personam jurisdiction over publishers of first amendment articles under the same standards imposed on commercial entities, the citizens of each state would soon find themselves with access only to those publications with in-state revenues sufficiently high to justify the cost of litigation within that particular jurisdiction. In short, the legendary "free marketplace of ideas," a cornerstone of our constitutional scheme, would be transformed into a marketplace of ideas limited to those who can afford the cost of litigation in that particular marketplace.
Courts confronted with this inherent tension between the first and fourteenth amendments to the Constitution have generally required a more substantial presence within the forum state in order to sustain in personam jurisdiction over publishers and other purveyors of "first amendment articles." See, e.g., Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir. 1967) (where risk of chilling distribution of publication is not balanced by circulation within the forum, first amendment provides independent basis for dismissal); Curtis Publishing Co. v. Golino, 383 F.2d 586, 592 (5th Cir. 1967) ("it is reasonable to assume that due to the lack of substantial revenues derived from sales in distant forums, the strong possibility of lawsuits will have a chilling effect upon the desire of the newspaper to promote the distribution of publications expressing views unpopular in such forums"); The New York Times Company v. Connor, 365 F.2d 567, 572 (5th Cir. 1966) ("First Amendment considerations ... require a greater showing of contact to satisfy the due process clause ... "because of the inherent danger or threat to the free exercise of the right of freedom of the press if jurisdiction in every state can be inferred from minimal contacts' "); Gonzales v. The Atlanta Constitution, No. 78-C269 (M.D.Ill. Jan. 10, 1979) ("potential chilling effect on the exercise of First Amendment press freedoms that would result from requiring newspaper publishers to defend libel suits in every distant forum where a negligible number of copies of their newspapers are circulated constitutionally precludes the exercise of jurisdiction").
When pressed at oral argument, plaintiff's counsel conceded that her position could be reduced to the proposition that the cases noted above were incorrectly decided. Neither she nor counsel for defendant could cite me any authority contrary to those decisions. Yet, the Tenth Circuit purports to be in complete disagreement with the Fifth Circuit on this issue. See Anselmi v. Denver Post, Inc., 552 F.2d 316, 323-25 (10th Cir.), cert. denied sub nom. Times Mirror Co. v. Anselmi, 432 U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084 (1977). The court in that case states:
Whether there is a First Amendment defense is to be determined when the case is tried and ought not as a matter of reason and logic affect the outcome of a personal jurisdiction question such as we have here .... To hold as did the Fifth Circuit that the First Amendment has to be thrown on the scales as an added impediment in media cases gives the media an additional arrow which is not appropriate in a determination as to whether the contacts are legally sufficient to constitute due process.