united-states jurisdiction lawyer libel choice-of-law
Which state&#39;s laws apply to online defamation?
<p>If a libelous statement is posted online, and the victim and offender are from different states, which state would be more pertinent to the defamation case? I.e. which state's defamation laws, statue of limitations, etc. are relevant? Can a lawyer licensed from any state handle such cases?</p>

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<p>If a libelous statement is posted online, and the victim and offender
are from different states, which state would be more pertinent to the
defamation case? I.e. which state's defamation laws, statue of
limitations, etc. are relevant?</p>
</blockquote>
<p>First of all, a basic point. Defamation claims arise under state law, even though state law is required to conform to the limits imposed by the U.S. Constitution.</p>
<p>Also, there are two distinct issue to consider. One is which state's courts have jurisdiction to hear such a case, and the other is which state's law should be applied to each particular issue in the case which is called &quot;choice of law&quot;. In practice, the two issues often overlap. But this isn't always true.</p>
<p>For example, you can always sue a defendant where they reside (or in the case of a business entity, where its headquarters are located) on a claim arising anywhere in the world. The courts of this state have &quot;general jurisdiction&quot; over this defendant.</p>
<p>But, suppose for example, that the defendant resides in Maine, but the defamatory statement was made in New York State by the defendant when the defendant was located there to people who were predominantly in New York State, and the statement was about someone who lived in New York State and things that that person supposedly did in New York State. In that case, if a lawsuit were filed in Maine against the defendant (since Maine would have &quot;general jurisdiction&quot; over the defendant), the courts of Maine might very well apply the law of New York State to most or all of the non-court procedure related legal issues in the case.</p>
<p>The law of the place where the statement is made can apply, and the law of a place where the statement was intended to be directed (e.g. a state where a known subject to defamation resides) can be applied to a defamation case.</p>
<p>But, the law of a place were people merely incidentally receives knowledge of a defamatory statement is not a proper law to chose or forum in which a lawsuit can be brought, if (1) the person making the statement was not directing the statement at someone in that state and (2) the person making the statement did not intend that the person to whom the statement is directed suffer reputational harm in that state.</p>
<p>The default choice of law rules (in the absence of a contrary statute) apply the law of the place with the &quot;most significant connection&quot; to the legal issue being applied and the same state's law is not necessarily applied to all issues in the case.</p>
<p>In the absence of a showing that another state's law differs from that of the state where the lawsuit is filed and that it has a more significant connection to the relevant legal issue in the case, the law of the state where the case is being tried will be applied.</p>
<p>Many states have specific statutes regarding the application of a statute of limitations from another state than the one where the lawsuit is filed in order to discourage efforts to apply the law of whichever state has the longest statute of limitations, and to discourage filing case in a state just because it has a long statute of limitations.</p>
<p>In practice, a lot of the substantive law of defamation is limited by federal constitutional First Amendment limitations and by a common English common law source for defamation law.  So, the substantive law of defamation other than the statute of limitations isn't that different from state to state. But, in recent years, the biggest difference has been that some states have enacted Anti-SLAPP statutes (SLAPP is an acronym for &quot;strategic lawsuits against public participation&quot;) that disfavor many kinds of defamation actions procedurally. The existence or lack of an anti-SLAPP statute in a state may make choice of law important in a defamation case.</p>
<p>A recent case illustrates that it is hard to decide which states's law applies (via <a href="https://reason.com/volokh/" rel="nofollow noreferrer">this blog</a> around April of 2022).</p>
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<p>Former California Congressman Devin Nunes sues Georgia-headquartered,
Delaware-incorporated CNN in Virginia for allegedly defamatory claims
made in New York about Nunes' conduct in Austria.</p>
<p>The case is transferred to New York, but still governed by Virginia
choice of law, and the New York court determines that, under Virginia
law, California law governs the claims. The California Congressman
objects that Virginia law would have applied New York law.   <a href="https://www.courthousenews.com/wp-content/uploads/2022/04/nunes-ca2-cnn-dism.pdf" rel="nofollow noreferrer">Second
Circuit</a>: Virginia law would have applied California law. Dissent:
Virginia law would have applied New York law. Or maybe D.C. law.</p>
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<p>A comparative international analysis of the choice of law rules that would apply in the same fact pattern can be found <a href="https://tlblog.org/multistate-defamation-cross-border-torts-and-choice-of-law/" rel="nofollow noreferrer">here</a>.</p>
<p><em>See also</em> a <a href="https://www.govinfo.gov/content/pkg/USCOURTS-flsd-1_18-cv-24227/pdf/USCOURTS-flsd-1_18-cv-24227-1.pdf" rel="nofollow noreferrer">Florida federal court case</a> applying these tests in 2019.</p>
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<p>Can a lawyer licensed from any state handle such cases?</p>
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<p>Usually a lawyer must be licensed to practice law in the state where a lawsuit is filed (but not in a state whose law is applied by an out of state court).</p>
<p>A lawyer from outside a state where a lawsuit is commenced can seek admission to the bar of the state where the lawsuit is pending <em>pro hac vice</em> which is an admission for a single lawsuit. But, usually a lawyer admitted <em>pro hac vice</em> in a state court must be affiliated with a lawyer admitted to practice in the state where the case is filed as co-counsel for that case in order to do so.</p>
