The district court denied the BBC’s 12(b)(2) and 12(b)(6) in Donald Trump’s defamation lawsuit over a documentary that spliced together pieces of his January 6, 2021 Ellipse Speech. The court found sufficient minimum contacts because the doc targeted an American (although not Florida) audience and because people in Florida could and did access it through VPN. And the court found he had sufficiently pleaded actual malice, based in part on the BBC’s supposed ill will toward Trump.
I expect BBC to seek immediate review and to get it, despite the absence of a final judgment.
Denial of personal jurisdiction dismissals is a common-and-accepted basis for mandamus. And the jurisdictional analysis here is fairly weak–focusing the effects analysis on the U.S. as a whole rather than Florida, downplaying BBC’s efforts to avoid the doc being seen in Florida, and tagging BBC with unlawful action of third parties.
As to the merits, actual malice means knowledge of falsehood; it has nothing to do with the defendant’s animosity or hatred toward the plaintiff. The district court considered and emphasized that animosity (the BBC’s supposed history of “unfair” coverage of Trump) in finding actual malice sufficiently pleaded. This arguably conflicts with Eleventh Circuit precedent on the point (the district court downplayed the conflict, suggesting that circuit precedent conflicted with SCOTUS precedent and required him to reconcile the two bodies).
This opens two avenues. First is § 1292(b) certification of the question of law about how to treat allegations of ill-will and personal animosity in the actual malice question (which would bring the entire order before the court of appeals). Second is to seek mandamus on the merits, arguing that the district court got the actual malice analysis so wrong as to warrant immediate review.
(I used this case as my Civ Pro final last fall, so my students and I have been watching it closely. Several interned on the SD Fla. last summer