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New York blogger ruling may have wider impact

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NEW YORK—A federal appellate court's dismissal of a defamation lawsuit brought by a Brooklyn moving company against an Iowa blogger will have influence outside New York state, some observers say.

Attorneys say the June 26 decision by the 2nd U.S. Circuit Court of Appeals in Best Van Lines Inc. vs. Tim Walker reaffirms other courts' rulings but still is significant because of the court's prestige and the reputation of the judge who wrote it.

According to the decision, Mr. Walker of Waverly, Iowa, runs a nonprofit Web site that provides information and opinions on household movers.

In August 2003, Mr. Walker claimed in two postings on his site that New York-based Best Van Lines was performing household moves without legal authorization and without the required insurance, according to court papers.

Best Van Lines sued Mr. Walker, charging the statements were false, defamatory and intended to harm the company. It asked the court to ban him from publishing defamatory statements and sought $1.5 million in compensatory and punitive damages.

A lower court dismissed the case in 2004. A three-judge appeals court panel unanimously affirmed the lower court's dismissal.

A key focus of the opinion is New York's "long-arm" statute. The decision says "long-arm" statutes describe terms under which state courts can exercise personal jurisdiction over out-of-state defendants. New York's law, though, exempts defamation claims involving out-of-state parties, the opinion says.

"New York courts have found jurisdiction in cases where the defendants' out-of-state conduct involved defamatory statements projected into New York and targeting New Yorkers, but only where the conduct also included something more" in the way of business transactions, says the opinion. But this was not the case with Mr. Walker, the opinion concludes.

"Moreover, the nature of Walker's comments does not suggest that they were purposefully directed to New Yorkers rather than a nationwide audience," the opinion states. "Material on the Web site discusses interstate moving companies located in many states for the putative benefit of potential persons in many states who will undergo household moves."

Terrence A. Oved, an attorney with Oved & Oved L.L.P. in New York, who represented Best Van Lines, said his client is considering whether to ask for a rehearing before the full court.

Some observers say the decision has limited application.

Charles S. Sims, an attorney with Proskauer Rose L.L.P. in New York, said the decision "joins a long list of decisions that refuse to allow the availability of an article in the state to be sufficient to sue the author or the publisher. But it is based on New York law. Therefore, strictly speaking, it should be precedential with respect only to state and federal courts here in New York."

But, said Robert J. Ambrogi, a Rockford, Mass.-based attorney, "A lot of the principles that the court sets out in the decision would apply to a broader analysis or even to a constitutional analysis."

"I think this is going to be one of those seminal cases that becomes kind of a turning point in defining the law on this issue," said Mr. Ambrogi.

Sandra Baron, executive director of the New York-based Media Law Resource Center, said, "To the extent New York's an important jurisdiction, the case will undoubtedly be influential."

Bruce E.H. Johnson, an attorney with Davis Wright Tremaine L.L.P. in Seattle, said, "The courts are still struggling with Web site defamation law and jurisdiction." This case is significant because it is consistent with other courts' decisions "that merely having defamatory statements on a Web site does not subject the publisher to suits anywhere in the United States or the world," which is a deterrent to free speech, he said.

Furthermore, the opinion's author, Judge Robert D. Sack, "is one of the leading experts on libel law and has written a treatise on the subject, so this will be a very well-respected decision," despite its focus on New York's law, said Mr. Johnson.

Jeremy Feigelson, an attorney with Debevoise & Plimpton L.L.C. in New York, said the 2nd Circuit "is one of the leading federal courts in the country, and when the 2nd Circuit speaks on free speech issues, people listen."

Jonathan D. Hart, an attorney with Dow Lohnes P.L.L.C. in Washington, said, "It's an important opinion because it's so thorough and carefully written and well-reasoned. It pulls together the law in this area and articulates it."

However, "It's not doing anything particularly new and different," Mr. Hart said. Decisions in the area "tend to be very fact-specific," he said.

Best Van Lines Inc., plaintiff-appellant, vs. Tim Walker, defendant-appellee, U.S. Court of Appeals for the Second Circuit, No. 04-3924-cv, June 26, 2007.