The question of whether Kentucky’s long-arm statute grants jurisdiction to federal courts over tweets sent from out of state was debated at the Sixth Circuit, as students involved in the infamous 2019 Washington Monument standoff sought to reinstate harassment claims against Kathy Griffin.
CINCINNATI (CN) — Students involved in the 2019 standoff with a Native American leader at the Washington Monument argued Tuesday before the Sixth Circuit to reinstate harassment and invasion of privacy claims against comedian Kathy Griffin and a New York doctor.
The Covington Catholic students, some of whom are no longer at the Kentucky school, filed separate suits against Griffin and Dr. Sujana Chandrasekhar, claiming their tweets about the incident constituted a “doxing” campaign and violated several state criminal statutes related to harassment and menacing.
Griffin posted several tweets in the aftermath of the now infamous standoff between Nicholas Sandmann, several of his classmates and Native American activist Nathan Phillips, which occurred while the students were in Washington for the annual anti-abortion event March for Life.
In the tweets, the comedian asked fellow Twitter users to identify the students involved and told them to “let this fine Catholic school know how you feel about their students [sic] behavior toward the Vietnam veteran, Native American #NathanPhillips.”
Similarly, Chandrasekhar, an ear, nose and throat specialist based in New York, tweeted a wanted poster that included pictures of numerous Covington Catholic students and referred to them as “scary faces, indeed.”
Sandmann, the student who was at the center of viral images of the standoff, is not a named plaintiff in either of the suits.
Senior U.S. District Judge William Bertelsman, an appointee of Jimmy Carter, was assigned to both cases and determined that because neither Griffin nor Chandrasekhar were in Kentucky when they sent the tweets, he lacked jurisdiction over the claims.
“In the long-arm statute,” Bertelsman said, “the Kentucky legislature specifically listed the acts or omissions that will support personal jurisdiction, and it did not include a provision for an out-of-state statement causing harm to a Kentucky citizen as one of those enumerated bases.”
In their brief to the appeals court, the students argued Griffin accepted the jurisdiction of Bertelsman’s court when her attorney filed a notice of appearance and participated in the litigation, and that, in any case, the “true threat” posed by the tweets established jurisdiction under the long-arm statute.
“The CCH students were not mere bystanders to random, fortuitous and attenuated rantings by Ms. Griffin,” the brief states. “They were and remain the intended targets of her purposely directed, criminal tortious acts.”
A similar argument was made in the students’ brief regarding their case against Chandrasekhar, whom they claim “posted a stunningly effective, indelible visual – a wanted poster – of the students’ separately numbered pictures, knowing this would forever circulate in cyberspace.”
In her brief to the court, Griffin attacked the plausibility of the students’ claims and pointed out that none of the plaintiffs even claim to have seen her tweets.
“Here,” the brief said, “there is utterly no basis to conclude that Ms. Griffin’s four tweets placed plaintiffs in reasonable apprehension of injury, much less imminent physical injury.”
Chandrasekhar focused on jurisdiction in her brief to the Sixth Circuit, arguing that she “did nothing more than post a public tweet about a topic of public interest.” The doctor called the students’ arguments “thinly veiled attempts to reframe alleged consequences as actions … that have already been rejected by Kentucky courts and by this circuit.”
Attorney Kent Seifried argued on behalf of the students in Tuesday’s consolidated arguments, and told the three-judge panel that jurisdiction should have been extended by the district court because of the nature of the tweets as “true threats” to his clients.
Seifried described true threats as instances in which the speaker intends to cause fear in the recipient of his or her message, and said both defendants’ tweets were prime examples.
The attorney said Griffin was “engaging and calling on people in the commonwealth to identify” the students.
“Dr. Chandrasekhar posted their pictures … formatted into a wanted poster style … and said to the community, ‘do you know them?’” he added.
U.S. Circuit Judge Julia Gibbons, an appointee of George W. Bush, asked about the intent behind Kentucky’s long-arm statute.
“Safe to say, legislators weren’t thinking about a tweet,” she quipped.
Seifried agreed but argued that while the original statute was written to cover letters and obscene phone calls, it also extends to current forms of communication.
Attorney Jason Palmer argued on behalf of Chandrasekhar and accused his opposing counsel of stretching the limits of Kentucky law regarding jurisdiction.
He told the panel there are “no authoritative signals from the judiciary or the legislature … to support such an innovation.”
“A defendant has to reach out to the forum state,” Palmer said. “Nobody from Kentucky was tagged or attached to the tweet. … [These] are non-territorial tweets that … did not provide close to the level of contact that would give rise to jurisdiction there.”
Attorney Mike Grygiel argued on behalf of Griffin and focused his time on the students’ claim that his client waived her right to contest jurisdiction when her attorney filed a notice of appearance at the federal level.
He said his opposing counsel’s interpretation of the situation is “incompatible” with federal filing requirements, and added that “no one can attest that a one page [appearance filing] is a responsive pleading.”
Senior U.S. Circuit Judge Eugene Siler Jr., an appointee of George H.W. Bush, and U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, also sat on the panel. No timetable has been set for the court’s decision.