against the moving party, and all allegations of the nonmoving party that conflict with those of the movant must be taken as true." McKinney v. West End Voluntary Ambulance Ass'n, 821 F. Supp. 1013, 1017 (E.D. Pa. 1992). The moving party carries the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In turn, the nonmoving party cannot rely on the allegations contained in the complaint. Instead, the nonmoving party must offer specific facts indicating that a genuine issue for trial exists. Id. at 324. The nonmoving party "cannot . . . rely merely upon bare assertions, conclusory allegations or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Fed. R. Civ. P. 56(e). If there are no genuine issues as to material facts, the court must determine whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
A. Personal Jurisdiction
Where a court is asked to rule on a combination of Rule 12 defenses,
it should pass on the jurisdictional issues first.
Plaintiff bears the burden of demonstrating that the defendant has contacts sufficient with the forum state to provide in personam jurisdiction. See Compagnie des Bauxites de Guinee v. L'Union, 723 F.2d 357 (3d Cir. 1985). Generally, when, as here, the pleading and affidavits are relied upon to meet this burden the plaintiff succeeds by establishing a prima facie showing of facts supporting jurisdiction. See Pennebacker v. Wayfarer Ketch Corporation, 777 F. Supp. 1217, 1219 (E.D. Pa. 1991). Factual discrepancies created by affidavits are generally resolved in favor of the non-moving party. See id.
To determine whether a court has personal jurisdiction over a defendant, it is necessary to examine the relevant statutes of the forum state.
The Pennsylvania Long Arm Statute allows a court to exercise jurisdiction over a person "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." Time Share Vacation Club v. Atlantic Resorts, Ltd. 735 F.2d 61, 63 (3d Cir. 1984). Thus, the reach of the Pennsylvania statute is coextensive with the due process clause of the United States Constitution. See id..
Under the due process clause, a court may not exercise personal jurisdiction over a non-resident defendant unless there are certain minimum contacts between the defendant and the forum. See Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). In order for a non-resident defendant to be constitutionally subject to the jurisdiction of this court, it must have purposefully availed itself of the privilege of acting within the forum state. See Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).
In Proctor & Schwartz v. Cleveland Lumber Co., 228 Pa. Super. 12, 323 A.2d 11 (1974), the Pennsylvania Supreme Court established a tripartite analysis to determine whether sufficient contacts are present for the exercise of specific jurisdiction:
First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws . . . . Second, the cause of action must arise from defendant's activities within the forum state . . . . Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.
The touchstone of Proctor's first prong is whether the "defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980) (emphasis added); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984) (The function of the purposeful availment requirement is to assure that personal jurisdiction is not premised solely upon a defendant's "random, isolated, or fortuitous" contacts with the forum state.).
In Gordy v. The Daily News, 95 F.3d 829, 831 (9th Cir. 1996), a case similar to this one,
the Ninth Circuit concluded that the defendant New York Daily News, which had published a column allegedly defaming plaintiff and had distributed from 13 to 18 copies of its newspaper in California, had sufficient minimum contacts with California to support the exercise of personal jurisdiction there. See id. Although the Ninth Circuit recognized that the New York Daily News' circulation within California was quite small, the court nonetheless believed that jurisdiction was proper because the defendant had purposefully availed itself of or "targeted" the plaintiff and California. Of particular importance to the Ninth Circuit, besides the fact that defendant had regular subscribers in California, was the fact that 1) the defendant knew that plaintiff was a California resident when it wrote its allegedly defamatory article; 2) the purpose of the article was to report on plaintiff and his California activities, and 3) the bulk of the harm from the defamation occurred in California, the place of plaintiff's domicile. See id.
Recognizing Supreme Court precedent, the Ninth Circuit refused to focus solely on the small circulation of the Daily News in California and refused "to adopt a de minimis rule regarding newspaper publication that requires distribution considerably in excess of 13 to 18 copies to permit specific jurisdiction." 95 F.3d at 833 (citing Calder v. Jones, 465 U.S. 783, 790, 79 L. Ed. 2d 804, 104 S. Ct. 1482 (1984) ("Petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.")
and Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780-81, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984) (finding publisher capable of being sued in a forum where "only a small portion" of its copies were distributed)).
In this case, Globe's actions were also targeted at Pennsylvania. Globe's article was about plaintiff and six others, three of whom are residents of Pennsylvania; Globe knew when it allegedly defamed plaintiff that at least one of the targets of the article lived in Philadelphia, Pennsylvania;
because there were only seven people mentioned in the article, Globe had good reason to expect that a substantial impact of its allegedly defamatory article would be felt in Pennsylvania where the article was distributed, see Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984) (noting that it is reasonable to expect the bulk of the harm from defamation of an individual to be felt at his or her domicile); and Globe serves subscribers in Pennsylvania, though they are few.
Under Proctor 's first prong, Globe purposefully availed itself of Pennsylvania.
As for Proctor 's second prong, there is little doubt that plaintiff's claim arises out of defendants' forum-related activities. In this case, the important forum-related activity was the circulation in Pennsylvania of an allegedly defamatory column, the effect of which was felt in Pennsylvania, plaintiff's home state.
As for Proctor 's third prong, once the court has decided that Globe has the requisite minimum contacts and that plaintiff's claim arises out of them, Globe must show that the exercise of jurisdiction over it is unreasonable.
Here, Globe can make no such showing. Globe knew that some of the article's targets lived in Pennsylvania when Globe allegedly defamed plaintiff and Globe should have expected that the article's negative impact would largely be felt in Pennsylvania, see Keeton, 465 U.S. at 780; Globe regularly serves subscribers in Pennsylvania; and, litigating in Philadelphia, Pennsylvania is not unreasonably far from Globe's home in Boston, Massachusetts. Thus, Globe cannot make a compelling case that litigating in this forum would render jurisdiction unreasonable.
In sum, by publishing an allegedly defamatory article the effects of which would clearly be felt in Pennsylvania, and by regularly circulating newspapers in Pennsylvania, Globe purposefully availed itself of the privilege of conducting activities in Pennsylvania. Plaintiff's claim arises from those activities. Globe has not made a compelling case that litigating in Pennsylvania would be unreasonable. Thus, Globe's 12(b)(2) motion to dismiss for lack of personal jurisdiction will be denied.
B. Fair Report Privilege
Under the common law republication rule, one who repeats a defamatory statement is as liable as the original defamer. This rule is based on the legal fiction that the republisher adopts the defamatory statement as his or her own. However, the official or fair report privilege is an exception to the rule of republication liability. It is a privilege to publish accounts of public proceedings or reports despite their defamatory nature. See Mosely v. Observer Publishing Co., 427 Pa. Super. 471, 629 A.2d 965 (Pa. Super. 1993) (finding that newspaper was privileged to report fairly and accurately information which was contained in a search warrant); Oweida v. Tribune-Review Publishing Co., 410 Pa. Super. 112, 599 A.2d 230, 233 (Pa. Super. 1991).
Pennsylvania has long recognized a privilege for the press to publish accounts of official proceedings or reports even when they contain defamatory statements. See,e.g., Medico v. Time, 643 F.2d 134, 137 (3d Cir. 1980) (finding that Time magazine's republication which summarized FBI surveillance reports was protected under Pennsylvania's fair report privilege); Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (Pa. 1963) (finding that a newspaper's republication of Governor's report on organized crime was within the ambit of the privilege and not an abuse of that privilege). So long as the press report presents a fair and accurate summary of the proceedings, see Williams v. WCAU-TV, 555 F. Supp. 198, 201 (E.D. Pa. 1983); Sciandra, 187 A.2d at 587; Restatement (Second) of Torts, § 611 (1977), and the account was not published solely for the purpose of causing harm to the person defamed, see Sciandra, 187 A.2d at 588-589 (Pa. 1963); but see Restatement (Second) of Torts, § 611 (1977) (making no reference to the "solely to harm" requirement), it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate. It is not essential that the governmental proceedings or the official report be set forth verbatim by the newspaper. A summary of substantial accuracy is all that is required. See Sciandra, 187 A.2d at 587; Prosser, Torts § 95 (2d Ed. 1958); Restatement (Second) of Torts, § 611 (1977). A statement is substantially accurate if its "gist" or "sting" is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced. See Williams, 555 F. Supp. at 201.
The existence and breadth of the privilege concerning reports of official or judicial proceedings are matters of law appropriate for summary disposition. See Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981); Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406 (E.D. Pa. 1978). Further, summary judgment is appropriate where the record contains no evidence from which a jury might find that a defendant abused the privilege and where there is no genuine issue of material fact as to the substantial accuracy of the report. See Mathis, 455 F. Supp. at 415.
1. Does the Privilege Apply to Foreign Government's Actions?
Globe and Post assert that they are entitled to summary judgment because the material facts show that their newspaper articles about plaintiff were fair and accurate reports of official action by the Israeli government and thus protected under Pennsylvania's fair report privilege. However, their claim that the articles were fair and accurate and therefore privileged puts the cart before the horse and overlooks the threshold issue in this case: Whether Pennsylvania's fair report privilege even applies to news reports based on the official acts of foreign governments?
In light of this novel question,
plaintiff urges the court to refuse to apply Pennsylvania's fair report privilege to news reports based on official acts of foreign governments. Defendants counter that a refusal to recognize and apply the privilege to foreign governments, even a qualified privilege,
would be contrary to precedent and public policy. After examining prior Pennsylvania case law on the fair report privilege, the Restatement (Second) of Torts, § 611 (1977) and the policy rationales which have traditionally supported application of the privilege, the court agrees with defendants and concludes that under Pennsylvania law there exists and should be applied here a qualified privilege for the fair republication of official acts of foreign governments. Recognition of a qualified fair report privilege strikes the most appropriate balance between the need to protect an individual's reputation and the American public's need to have knowledge of the acts of foreign governments.
a). Pennsylvania Case Law
Pennsylvania case law provides very little guidance on whether the fair report privilege applies to news publications based on foreign government actions. In Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (Pa. 1963), Pennsylvania's seminal fair report case, the Supreme Court of Pennsylvania was asked to rule upon whether a study commissioned by the Governor of New York was an "official act" sufficient to fall within the protections of the privilege. Stating the privilege in broad terms, and including the report as official action covered by the privilege, the court declared: "Upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts [including commission reports] of the executive or administrative officials of government." 187 A.2d at 588.
In Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981), the Third Circuit, analyzing Pennsylvania case law, held that Pennsylvania's fair report privilege applied to a Time magazine article which fairly and accurately summarized an FBI investigatory tape implicating the defendant with the Mafia. Relying on the Restatement (Second) of Torts, § 611 (1977), the court noted that FBI materials were "official" in nature since the agents who compiled them were acting within the scope of their appointed duties. Id. at 140.
Like Sciandra, Medico focused primarily on the type of action taken, and whether news coverage of the action was fair and accurate, not on the status of the governmental body that took the action. See Webb v. Times Publishing Co., Ltd., 2 QB 535, 563 (1960) (citing Perera v. Peiris, A.C. 1 (P.C. 1949)). Thus, neither case is particularly helpful in determining whether the privilege applies to press releases of foreign governments. The same holds true for the other Pennsylvania cases cited by defendants in support of the proposition that Pennsylvania's fair report privilege has been or should be expanded to include defendants' news reports of the Israeli press release. See, e.g., Lal v. CBS, 726 F.2d 97 (3d Cir. 1984) (videotaped interviews with witnesses supplementing news broadcast of judicial proceeding within privilege); Williams v. WCAU-TV, 555 F. Supp. 198 (E.D. Pa. 1983) (police reports of physical arrest of criminal suspects within privilege).
b). The Restatement
The Restatement (Second) of Torts does not shed much light on the subject either.
The Restatement reads as follows:
s 611 REPORT OF OFFICIAL PROCEEDING OR PUBLIC MEETING
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
Restatement (Second) of Torts, § 611 (1977).
Further, comment (d) states: