Scottie Pippen, the seven-time all-star who played on six NBA championship teams, wants the world to know that he is not broke. He wants it badly enough to take an assortment of media defendants to federal court, including NBC, CBS and Arizona State University.
Arizona State?
In a complaint filed Dec. 13 in U.S. District Court for the Northern District of Illinois, Pippen contends that nine media outlets committed a “most foul libel” — that’s really what it says — by reporting (falsely, says the basketball great) that Pippen is “bankrupt” or some variation thereof. (It is documentable that Pippen has never filed personal bankruptcy. The perception that Pippen lost his fortune may be the product of a well-publicized 2004 lawsuit he filed against his former financial manager, alleging he blew as much as $30 million in overly speculative investments.)
The complaint seeks $1 million for each purportedly defamatory utterance.
Arizona State landed among the defendants because of a post on The ASU Sports & Entertainment Law Blog — proving that all the short blog names are taken. The blog is the work of students at ASU’s Sandra Day O’Connor College of Law; it is an adjunct to the Sports and Entertainment Law Journal, which describes itself as “a student-edited, faculty advised interdisciplinary journal” about developments in the legal field.
In reviewing the blog post, it is doubtful that it crosses the threshold to be legally defamatory, especially because, as a world-famous public figure, Pippen will have the burden of proving not just falsity but a reckless disregard for the truth.
While the blog entry is headlined “Athletes and the Race to Bankruptcy,” it pretty clearly is about “bankruptcy” in the colloquial sense that laymen use the term, discussing both athletes who have actually filed for bankruptcy protection alongside those who simply have experienced enormous financial losses — and Pippen by his own words belongs in the latter category. Factual assertions in the blog about Pippen’s financial misfortunes all are derived from court filings, and nowhere does the blog allege that Pippen declared bankruptcy.
But that is not why the case is interesting.
It is interesting from a student-media-law perspective because, in a motion to dismiss filed April 6, Arizona State contends (among other defenses) that it cannot be held liable for the work of its students:
The student-run, written and edited blog at issue contains a disclaimer that on its face shows that neither ASU nor the Sandra Day O’Connor College of Law are responsible for the student’s comments and opinions.
This is, potentially, a big deal. Courts have consistently said that public colleges cannot be sued over the content of student-produced media, because the First Amendment prohibits college employees from overruling students’ editorial decisions. No control, no liability.
Because the Web has eliminated financial and logistical barriers, student-authored work is being published at never-before-seen rates. Material produced in journalism lab classes — which in an earlier generation was graded by professors and stuck in a file cabinet — now commonly is showcased online, in venues such as The Red Line Project (started by a DePaul University j-school class) or Philadelphia Neighborhoods, a project of Temple University’s Multimedia Urban Reporting Lab.
With this proliferation in student-generated publishing, it is especially essential that courts stick to the established legal principle that students are not the “agents” of their schools for liability purposes. To the contrary, students are more analogous to customers than to employees — and just as there typically is no duty on a business to control the acts of its customers, there should be no responsibility on a college to monitor and police what its students write. Arizona State’s motion to dismiss presents an opportunity for the Illinois court to reinforce this important principle.
A “rogue” ruling that holds ASU liable for the contents of the sports-law blog would send a shudder through all of the collegiate publishing world, as there is no practically effective — or constitutionally permissible — way for a public institution to edit everything its students post using school computers or school websites.
Secondarily, the case presents a jurisdictional issue in an area of the law that is no longer new, yet still unsettled: When can a court exercise personal jurisdiction over an out-of-state speaker whose speech is accessible in, and is alleged to have caused harm in, the state where the lawsuit is filed?
Illinois federal courts are governed by the rulings of the Seventh Circuit U.S. Court of Appeals, and the Seventh Circuit just dealt in 2010 with the question of jurisdiction over a nonresident defendant in a defamation claim.
In Tamburo v. Dworkin, John Tamburo alleged that some business rivals, believing that he had improperly copied information from their website to incorporate into a software product, set out to ruin his company by organizing a boycott through blast emails and website postings. Tamburo sued in his home state, Wisconsin. Three defendants lived in Colorado, Michigan and Ohio; a fourth resided in Canada.
The Seventh Circuit ruled that jurisdiction was proper in Wisconsin, because the defendants “purposely targeted Tamburo and his business in Illinois with the express goal of inflicting commercial and reputational harm on him there(.)” The court carefully avoided deciding whether jurisdiction could be based on something less than purposeful targeting — and in particular avoided deciding whether it is enough merely to have posted something online that “enters” a state and causes injury there.
While instructive, the Tamburo ruling is in no way conclusive of jurisdiction over Arizona State (or over the University of Tampa, the other college media defendant in the Pippen case, which separately has also moved to dismiss the complaint on jurisdictional grounds). In fact, the Tamburo case on balance probably is more helpful to the media defendants by way of distinction.
In Pippen’s case, there patently was no intent to cause harm in Illinois (or anywhere else); at the very worst, the behavior amounts to carelessness. Indeed, other than the fact that he famously played for the Chicago Bulls, there is no reason to believe that anyone writing for an Arizona student blog would even have been sure that Pippen, who retired in 2004, still lived in Illinois. (Pippen played for Houston and Portland in his later years in the league.)
Of course, jurisdiction ultimately is a matter of due process, and the key due process question is whether the defendant has sufficient “contacts” with the state to be answerable to a lawsuit that is filed there.
This is where the answer to the first question — is Arizona State University even the right party to be sued? — will likely be conclusive of the second. ASU is America’s biggest public university by enrollment. It maintains a large alumni association chapter in Chicago, and undoubtedly has myriad other business ties with Illinois. It probably has enough Illinois “contacts” to be sued there. But the same probably cannot be said of blog author Dan White, or the law journal for which he wrote. If Pippen were forced to proceed against the actual creator of the content — and with ASU’s much deeper pockets out of the case, there would be meager motivation — he might have to forfeit home-court advantage.