N.D. high court upholds $3 million libel claim against student over Web site

NORTH DAKOTA — The North Dakota Supreme Court affirmeda district court judgment in May in a $3 million libel claim brought against a formerUniversity of North Dakota student for her “harassing” remarks to a professor.The case raised important questions on whether state courts havejurisdiction over alleged libelous material posted online from another state andwhether statements made during university judicial hearings were protected fromlibel suits. In its May 6 ruling, the state high court rejected both of thoseclaims raised by the student and upheld the large award. The formerstudent, Glenda Miskin, was indefinitely suspended from the University of NorthDakota in 1999 for violating the student code of conduct by stalking andharassing John Wagner, her one-time physics professor, and for disrupting campusoffices. The decision was upheld by the university on appeal. Wagnerthen sued Miskin the following year, accusing her of making defamatory andsexually explicit comments about him on her Web site and on campus.Thearticles published on Miskin’s Web site, www.undnews.com, relate almostexclusively to the University of North Dakota and its staff. The expressedpurpose of the site is to “prevent others from being abused by UND” and generateexposure to help “UND’s administration correct past problems so all of uscan be proud of the University of North Dakota.”In April 2002, a juryawarded Wagner $3 million after ruling that Miskin had libeled and slandered himand intentionally interfered with his business relationships. Miskin,who now lives in Minnesota, claimed that North Dakota courts did not havejurisdiction over the statements she made on the Internet because thepublication of her articles, which were posted on her Web site, had originatedoutside the state. Miskin also claimed that statements she had made inuniversity hearings were protected by an absolute privilege so they could not bethe basis of a libel claim. The state supreme court, which had notpreviously considered an Internet jurisdiction case, ruled that it did havegrounds to rule in the case because Miskin “did particularly and directly targetNorth Dakota with her website, specifically resident John Wagner.”Although the court refused to determine a standard for cases involvingInternet postings from out-of-state sources, it provided a ruling in thisparticular case. The court said that it had jurisdiction because Miskin’s Website focused on a North Dakota college and because Miskin still lived in NorthDakota when many of the communications in question took place.The courtalso ruled that Miskin did not have absolute privilege over statements made inthe university hearings.”A privileged statement, such as one made in ajudicial proceeding, is not privileged for all subsequent publications by virtueof initially being spoken in a privileged proceeding,” the court wrote. “Miskinseems to assert that once a statement is made in a setting in which it may beprivileged, she is free to repeat it at will in other situations.”Evenif some of Miskin’s statements had been privileged, she waived that right byasking the court to consider her statements made in the university hearings, thecourt said.The court said that it could not consider all issuespresented in the appeal because Miskin failed to submit a complete transcript ofthe district court proceedings, which, as the appellant, was herresponsibility.Miskin and Wagner both represented themselves at theappeal hearing.Miskin said that she does not plan to pay the $3 millionbecause the basis for the decision “was unconstitutional.” She said she hasfiled for a rehearing and plans to appeal the decision to the U.S. SupremeCourt.

Wagner v. Miskin, 660 N.W.2d 593 (N.D. 2003)

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