GUENTE R L EWY,

Plaintiff,

v. SOUTHERN POVERTY LAW CENTER, I NC., et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08-1971 ( CKK)

MEMORAN DUM OP INION (Jul y 13, 2010) Plaintiff Guenter

L ewy filed the a

bove-c aptioned ca se ag ainst Defe ndants David Holthouse (“H olthouse”) a nd Southern Poverty

L aw Cente r, Inc. (“ SPL C”) alleg ing that they wrote a nd published defa

matory statements that ca

used him various injuries including reputational harm and e motional trauma. In response to Plainti ff’ s Amended Complaint, Def endants filed a

Motion to Dism iss for lack of persona l jurisdiction pursuant to Fede ral Rule of Civil P roce dure 12( b)(2) . This Court denied that motion without prejudice and grante d Plaintiff’s Motion for J urisdictional Discover y to allow Plaintiff to discover fa cts relating to ea ch Def endant’ s connec tion to the District of Columbi a. See Orde r (June 18, 2009), Docke t No. [24] . Now that jurisdictional discover y has bee n completed, the pa rties have filed supplemental briefs on the issue of per sonal jurisdiction, and the Court shall now re consider D efe ndants’ [7] Motion to Dism iss. For the re asons explained below, the Court shall GRANT- I N-PART Def

endants’ Motion to Dismiss with respec t to Defe ndant Holthouse and D ENY-I N-PART with respe ct to Def endantSouthern Poverty L aw Cente r, Inc. I. LEGAL STANDARD Def endants have moved to dismiss for lack of persona l jurisdiction under Fe dera l Rule of Civil Procedur e 12(b) (2). A pla intiff bear s the burden of establishing a

fac tual basis for a sserting persona l jurisdiction over a de fenda nt. See Crane v . N.Y

. Zoological Soc’y , 894 F.2d 454, 456 (D.C. Cir. 1990). Ac cording ly , a plaintiff must prese nt evidence of spec ific fa cts establishing a prima fa cie c ase that personal jurisdiction exist s. Naegele v . Albers , 355 F. Supp. 2d 129, 136 (D.D.C. 2005); see also Sec ond Amendm ent Found. v. U .S. Conferenceof Mayors , 274 F.3d 521, 524 (D.C. Cir. 2001). “To ma ke such a showing , the plaintiff is not require d to adduce evidenc e that meets the standa

rds of a dmissibi lity

rese rved f

or summary

judgme nt and trial; rathe r she may rest her arguments on the pleading s, ‘bolstered by such af fidavits and other

written mater ials as [she] can othe rwise obtain.’ ” Urban Institute v. FINCON Servs. , 681 F. Supp. 2d 41, 44 (D.D .C. 2010) (quoting Mwani v. bin Laden , 417 F.3d 1, 7 ( D.C. Cir. 2005)). In contra st to a motion t o dismiss broug ht under F eder al Rule of Civil P roce dure 12( b)(6) , the Court need not tre at all of a plaintiffs’ alleg ations as true when dete rmining whether persona l jurisdiction ex ists over a defe ndant. Instead, the Court “ may rec eive a nd weig h aff

idavits and any

other re levant matter

to assist it i n deter

mining the jurisdictional fa cts.” United States v. Phillip Morris, Inc. , 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (c itation omit ted). Ne verthe less, the Court must resolve any fac tual discrepa

ncies with re g ard to the e x istence of persona l jurisdiction in favor of the plaintiff. See Crane , 894 F.2d at 456. II. F ACTUAL BACK GR OUND The followingfac ts are dr awn f rom the alleg ations in the Amended Complaint and the

2aff

idavits and other e vidence prese nted by the par ties in their briefs on the issue of per sonal jurisdiction. A. Claims Asserted in the Amende d Complaint Plaintiff Guenter

L ewy is an emer itus professor of political science at the Univer sity of Massac husetts and a r esident of the D istrict of Columbia. Am. Com pl. ¶ 12. A survivor of Ger man violence ag ainst J ews duringWorld W ar I I , Prof. L ewy has written numer ous books and article s about the history

of per secute d peoples such a s the Gy psies in Nazi-occupie d Europe, the Native Ame rica

ns, and the Ottoman Ar

menians. See id. ¶¶ 18, 21. In 2005, Prof. L ewy authore d a book entitled The Armenian Massac res in Ottoman Turkey: A Disputed Genoc ide (Univ. of Utah Press 2005) which discusses the atrocities committed ag ainst Armenians by the Ottoman Turks in 1915-16 and the debate in the historical community about whethe r to label those atroc ities a “g enocide .” Id. ¶ 21. Prof. L ewy ultimately

conclude s in the book that the curr ent, reliable evidenc e of g enocide is unpersuasive or inconclusive. Id. Prof. L ewy contends that many other re putable Amer ican sc holars have questioned the propr iety of the g enocide label. Id. ¶ 22. Def

endant Southern Pover

ty L aw Cente r, Inc. (“ SPL C”) is a not-f or-pr ofit org anization incorpora ted in Alabama

devoted to fighting discr imination and ext remism. Am. Compl. ¶ 13. SPL C publishes a quarter ly journal entitled IntelligenceReport that is provided fre e of c harg e and discusses the a ctivities of individuals and g roups that promote hatred a nd extremism. Id. The IntelligenceReport

is published both in hard copy and on the inter

net at SPL C’s website. Id. Def endant Da

vid Holthouse is Senior Editor of the IntelligenceReport

. See Def s.’ Supp. Mem., Ex . 4 (De p. of David Holthouse) at 8.
3In the summer of 2008, H olthouse authored a cover story for the Intelligence

Report entitled “State of D enial: Turke y entices U .S. scholars, lawmakers to cove r up Arme nian g enocide .” Id. ¶ 24; see also Compl., Ex . 2 (excerpts fr om Summ er 2008 issue of Intelligence Report). Holthouse’s ar

ticle discusses ef

forts by Turkey to deny the exist ence of the Ar

menian 1 g enocide and cr iticiz es the wor k of scholar s such as L ewy who dispute the existence of a g enocide

. See ge nerally Compl., Ex . 2. Specifica lly , the “State of Denial” article asser

ts that “L ewy is one of the most ac tive members of a networ k of Amer ican sc holars, influenc e peddle rs and we bsite operators, financ ed by hundreds of

thousands of dollars e ach year from the g overnme nt of Turke y , who promote the de nial of the Ar menian g enocide . . . .” Am. Compl. ¶ 25. The a rticle de scribes L ewy

as a “ revisionist historian” and fe ature s a picture of him. See Compl., Ex . 2. The Summer 2008 issue of the IntelligenceReport also features an e ditorial captioned “ Lying A

bout History ” that cr iticiz es L ewy . Id. ; Am. Compl . ¶ 24. L ewy claims that the statements made in the IntelligenceReport are defa matory beca use they falsely acc use him of cor

ruption, fra

ud, and eve n commission of a crime unde r the F oreign Ag ents Reg istration Act of 1938, 22 U.S.C. §§ 611-21. See Am. Compl. ¶¶ 27-33. L ewy claims that the statements dama g ed his reputa tion as a scholar , diminis hed his opportunities for tea ching and spea king, hur t his book sales, and ca

used him emotional trauma a nd suffe ring

. Id. ¶ 27. L ewy seeks c ompensatory

and punitive damag es totaling$8 milli on. Id. ¶ 41. B. SPLC’s Connections wi th the Forum Plaintiff asserts that SPL C has numerous conne ctions with this forum, the District of

There are sever al diffe rent subtitles for the “ State of De nial” ar ticle; the one quoted 1 above is fr om the cover

of the Summer 2008 issue of IntelligenceReport

. See Compl., Ex . 2.

4Columbi a. Althoug h SPL C is a non-profit cor poration re siding in Alaba ma, it operates a we bsite on the interne t that is acce ssible to D.C. residents. See Southern Poverty L aw Cente r, http:// www.splce nter.org . Visitors to the SP L C website ca n enter their ema il address a

nd subscribe to the or g anization’s newsletters, suc h as “H ate Watch Weekly” and “Nativism in the News.” See Pl.’s Mem., Ex . 1 (De p. of Mar k Potok) at 31-34. These newsletter s are distributed elec tronically

to thousands of subscriber s. See id. at 33. Visitors to the website ca n also reque st additional information about SPL C, make a c haritable donation, and comment on posting s on the SPL C’s weblog

. See Pl.’s Mem., Ex . 2 (SPL C’s Responses to Interrog atories) at 18. Unless a website visitor reque sts certa in information or make s a donation, SPL C does not keep tra ck of the visitor’s g eog raphic location. Id. Since 2005, SPL C has collecte d 541 email addr esses fr om donors who provide d a District of Columbia addr ess, and SPL C sent approxim ately 82 emails to its donors betwee n 2005 and 2008 re lating ne ws about its activities. Id. The SPL C website also contains an inter active f

eatur e ca lled “Stand StrongAg ainst Hate” that encour ag es visitors to email SPL C their contac t information to indicate their de sire to promote tolera nce; SPL C then place s those visitors’ names on a dig ital map of the United States indicating their location. See Stand Strong Ag ainst Hate, http://www.splcente r.org/center /petitions/ standstrong ; Pl.’s Mem. at 5. Acc ordingto documents produce d duringjurisdictional discovery , at least 117 District of Columbi a re sidents have sig ned the “ Stand Strong Ag ainst Hate” online petition. See Pl.’s Mem., Ex. 7 (“Stand St rongAg ainst Hate D C Si g ners” ). The w ebsite also invites law enfor ceme nt gr oups to sign up for SPL C-led trainingprog rams. In 2008, SPL C rece ived $29,118 in online donations from 133 diffe rent donors ba sed in the District of Columbia. See Pl.’s Mem., Ex . 5 (“D C Unique Donor a nd Revenue Count by

Z I P

5(Web Gifts Only )”) . In 2007, SPL C rece ived $24,654 in online donations from 106 sepa rate donors in D.C. Id. Fr om 2000-2008, the total amount of interne t contributions rece ived from District of Columbia donors was ove r $92,000 fr om 446 separate donations. Id. SPL C places its online donors in a re gular solicitation prog ram in which it sends mail to donors enc ourag ing them to rene w their membe rship and donate additional funds. See Pl.’s Mem., Ex . 6 (De p. of Wendy Via) at 16-17. SPL C also regularly solicits donations from D.C. residents. See Pl.’s Mem., Ex. 8 (“DC Soli citations by Z I P Code”). The se solicitations are done by mail to individuals and org anizations. Defs.’ Supp. Mem., Ex. 5 (Aff. of Wendy Via) ¶ 5. SPL C made 84,828 solicitations to D.C . residents in 2008 and 95,582 solicitations in 2007. See Pl.’s Mem., Ex . 8. SPL C earne d a total of $565,220.07 fr om 1787 differ ent D.C. donors in 2008 and $345,012.68 from 1918 diffe rent D.C. donors in 2007. Pl.’s Mem., Ex. 9 (“DC Unique Donor and Reve nue Count by

Z I P”). Ove r the nine- y ear period fr om 2000-2008, SPL C rece ived over $3 milli on in gif

t contributions from D.C. donors. Id. Donors may contribute online, by

mail, or by telephone. See Pl.’s Mem., Ex . 10 (De p. of Wendy Via) at 13. Be cause it rece ives donations from the District, SPL C is required by law to have an ag ent for se rvice of proc ess in D.C. See Pl.’s Mem., Ex . 18 (SPL C’s Responses to Interrog atories) at 25. In addition, one of SPL C’s Boa rd member s resides in D.C. Id. SPL C also distributes publi cations to individuals in the District of Columbi a. SPL C publishes IntelligenceReport eac h quarte r and a nother mag azine called Teaching Tolerance

. See Def s.’ Supp. Mem., Ex . 5 (Aff . of Wendy

Via) ¶ ¶ 7-8. The se mag azines are written in Alabama, published in Georg ia, and made available fre e of c harg e. Id. ¶ 8; Def s.’ Mem., Aff

. of Tee nie Hutchison ¶ 15. Dur ing the third quarter of 2009, SPL C distribut ed 1443 copie s of the
6IntelligenceReport to addre sses in the District of Columbia. Defs.’ Supp. Mem., Ex . 5 (Aff . of Wendy Via) ¶ 7. Be tween f

all 2005 and 2008, SPL C distribut ed 12,075 copie s of Teaching 2 Tolerancein the District of Columbia. Id. ¶ 8. SPL C has also distributed teac hing materials (such a s handbooks, videos, and le arningkits) to educational institutions i n the District of Columbi a as pa

rt of its “Tea chingTolera nce” education prog ram. Id. ¶ 9. F rom 2004 to 2008, SPL C distribut ed 7187 tea chingmateria ls to indi viduals in the District of Columbia. Id. In addition, SP L C awar ded two tea chingg rants to individuals or org anizations in t he District of Columbi a betwe en 2000 and 2008 ( out of 1356 such g rants aw arde d nationally ). Id. ¶ 10. SPL C staff member s have pa rticipated in c onfer ence s and trainingprog rams in the District of Columbia. From 2000 to 2008, SPL C staff par ticipated in four tr ainingprog rams in the District, with approximately 400 people r ece iving tra ining in thre e of those pr og rams. See Pl.’s Mem., Ex . 12 (SPL C’s Responses to Interrog atories) at 24. SPL C has connec tions with

sever al D.C.-base d org anizations, and sever al SPL C staff member s have attended conf ere nces or prog rams in D.C. rela

ting to their w ork with SPL C. SeePl.’s Mem., Ex s. 33-53 (B usiness Ex pense V oucher s for D.C. trips); see also Pl.’s Mem., Ex . 32 (De p. of Wendy Via) a t 43-47 (explaining that she visits D.C. at least once a year to meet with consultants). Some of these meeting s have be en with g overnme ntal entities, but many involve only

non-g overnme ntal org anizations. SPL C also monitors hate g roups in the District of Columbia and solicits information from District of Columbia sources in pre paring article s for publication. Duringjurisdictional

SPL C has indicated that it only has re cords f

or the third quar

ter of 2009 w ith respec t to 2 the distribution of IntelligenceReport

. See Def s.’ Supp. Mem., Ex . 5 (Aff . of Wendy

Via) ¶ 7. 7discovery , SPL C indicated that it was monitoringeig ht hate g roups locate d in D.C. See Pl.’s

Mem., Ex. 20 (Dep. of Mar k Potok) at 81-82. On one oc casion, SPL C had a re porter attend a meetingof one of

these D.C.-ba sed hate g roups. See id. at 84. SPL C staff member s have a lso contac ted D.C.-base d org anizations to obt ain information for SPL C. See Pl.’s Mem., Ex . 25 (SPL C’s Responses to Interrog atories) at 20 (e x plaining that SP L C’s Direc tor of Resea rch a nd Special Projec ts for its Intellige nce Proje ct had c ontacted two D .C.-based or g anizations by telephone a

nd/or email seve ral times over the y ear s to seek comment f or stories that involved them); Pl.’s Mem., Ex . 26 (SPL C’s Responses to Interrog atories) at 21 (discussingSPL C contac ts with an international re lations scholar at America n University

in D.C. for an a

rticle published by

SPL C). C. Holthouse’s Connections with the Forum Def endant Da

vid Holthouse resides in Alaba ma. See Am. Compl. ¶ 15. Betwe en 2000 and 2008, Holthouse visited the District of Columbia on four oc casions: once as a pr esente r at the Association of A lternative N ewswe eklies (“ AAN” ) Convention; once f or a pe rsonal visit with family

and fr iends; once to attend the Conservative Polit ical Ac tion Conferenc e (“ CPAC”) on assig nment for High Times mag azine for a story ; and once to attend a Ne o-Na zi i mmigration rally on assig nment for SPL C for a story

. See Def s.’ Supp. Mem., Ex . 1 (Holthouse’s Response s to Interrog atories) at 8-9. SPL C paid the expenses for the latter two trips, and the AAN pa id for Holthouse’s hotel on the fir st trip. Id. at 9. Holthouse has ne ver w orked f or an or g anization with an off ice in D.C. and ha s never held any assets in D.C. Id. at 10. When resea

rchingand pre paringfor the “ State of De nial” ar ticle, Holthouse tried

unsucce ssfully

to contact someone at the Institut e for Turkish Studies in W ashing ton, D.C. Id. at
85. After

the “State of

Denial” article was published, Holthouse spoke to a n individual at the Institut e for

Turkish Studies about his objections to the piece. Id. at 12. On a f ew other

occa sions, Holthouse interviewed subje cts in D.C. for ar ticles. See id. at 5-12. III. DISCUSS ION The que stion before the Court is whether D efe ndants’ conta cts with the District of Columbi a ar e suff

icient to enable this Court t o exercise pe rsonal jurisdiction over the m. The jurisdictional rea ch of this Court is determined by looking to the District of Columbi a long -ar

m statute and the c onstitut ional require ments of due pr ocess. See F E D . R. C I V . P. 4(k)(1)( A); United States v. Ferrara , 54 F.3d 825, 828 ( D.C. Cir. 1995). The D.C. long -ar m statute provides in pertinent pa

rt: (a) A District of C o l u m b i a court may exercise persona l jurisdiction over a person, who acts direc tly or by an ag ent, as to a claim for relief arising from the person’ s— (1) tra nsactingany

business in the District of Columbia; (2) c ontrac ting to supply

service s in the District of Columbia; (3) causing tortious injury in the District of Columbi a by an act or omission in the District of Columbia; [ or] (4) causing tortious injury in the District of Columbi a by an act or omission outside the District of Columbi a if he regularly does or solicits business, eng ag es in any other persistent course of conduct, or derive s substantial reve nue from g oods used or consumed, or se rvice s rende red, in the D istrict of Columbia[ .]

. . . . (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arisingfrom ac ts enumerated in this section may be asse rted a g ainst him. D.C. C O D E § 13-423 (2001) . In this case, L ewy asser ts that jurisdiction i s proper under subsection (a )(4) , which provide s specific jurisdiction over non-r esident def endants whose tortious acts outside the District of Columbia cause injury within the District if defe ndants satisfy

9one of the three enumer ated “ plus factor s”: “re gularly do[i ng ] or soli cit[i ng ] busi ness, eng ag [i ng ] in any other pe rsistent course of conduc t, or deriv[ing] substantial reve nue fr om goods use d or consumed, or se rvice s rende red, in the D istrict of Columbia.” Id. § 13-423(a )(4) . In this case, L ewy contends that De fenda

nts’ alleg ed ac ts of defa

mation outside the District cause d him injury within the District and that De fenda nts have e ng ag ed in a “ persistent cour se of c onduct” in the 3 District. Although § 13- 423 require s that the claim asse rted by the plaintiff arise from the “ acts

enumer ated in this section,” f eder al cour

ts have longheld that the “pe rsistent course of conduc t” require d for jurisdiction under subsection (a )(4) need not be related to the tortious act outside the forum that ca

uses the injury

. See Crane v . Carr , 814 F.2d 758, 763 ( D.C. Cir. 1987); Steinberg v. Int’l Criminal Police Org. , 672 F.2d 927, 931 ( D.C. Cir. 1981). In Crane , then-Judge Ruth Ba der G insburgexplained that under subsec tion (a)( 4), t h e act outside/ impact inside the forum is the basis for draw ing the case into th e court, but beca

use the harm-g ener ating act (or omission) occur red outside, the statute calls for something mor e. T h e “something more” or “plus fac tor” does not itself supply the basis for the asser

tion of jurisdiction, but i t does serve to f ilter out c ases in which the inforum impact is an isolated event and the defe ndant otherwise has no, or sca nt, affiliations with the forum. Crane , 814 F.2d at 763. In a re cent de cision, the D.C. Court of Appea ls ex plicitly adopted the When a District of Columbia plaintiff is injured by a def amatory article published in and 3 mailed from a

nother state, the tortious act is considere d to have oc curr ed outside the District of Columbi a and the injury

is considere d to have oc curr ed inside the District of Columbia. See McFarlanev. Esquire Magazine , 74 F.3d 1296, 1300; Moncrief v . Lexington-He rald-Leader Co. , 807 F.2d 217, 221 ( D.C. Cir. 1986). For that rea son, jurisdiction is not proper under subse ction (a) (3) ( perta ining to tortious acts c ommitt ed inside the District). L ewy does not argue that his claims arise from De fenda nts’ transac ting business in the District, a nd there fore jurisdiction does not lie under subsec tion (a)( 1). None of the other subsections of D.C. Code § 13-423 a re r eleva nt to this action.

10Crane court’s r easoning , holding that the c laim need not ar ise from the “ plus factor s” imposed by

subsection (a )(4)

. See E tchebarne -Bourdin v. Radice , 982 A.2d 752, 763 (D.C. 2009). It is undisputed that L ewy ’s def amation claims ar ise out of Def endants’ c onduct outside the District of Columbia. There fore , for pur poses of the long -ar

m statute, the Court need only deter mine whether Def endants have eng ag ed in a “ persistent cour se of c onduct” in the District. Courts have g rapple d with the question of what number of conta cts is nece ssary

to establish a “pe rsistent course of conduc t” for pur poses of subsec tion (a)( 4). See B urman v. Phoenix W

orldwide Industries, Inc. , 437 F. Supp. 2d 142, 154 (D.D .C. 2006) (desc ribinga “notable la ck” of

authority on this iss ue). In Crane , the D.C. Circuit expl ained that the “per sistent course of

conduct” plus factor

“is satisfied by

connec tions considerably less substantial than those it takes to establish g ener al, all-purpose ‘doingbusiness’- or ‘ prese nce’

- based jurisdiction.” 814 F .2d at 763. The D .C. Court of Appeals, a dopting the Crane court’s analy sis, ex plained that “the ‘plus fac tors’ that ar e imposed by subsection (a )(4) . . . are an additional due proc ess safe guard . . . to e nsure that the pa rty beinghaled into this jurisdiction’s courts has more than a ‘ scant’ c onnection to the for um.” Etchebrne -Bourdin , 982 A.2d at 763. Thus, a def

endant’ s contac ts need not be great to satisfy subsection (a )(4) ; they

need only

be sufficie nt to establish a rea l connec tion to the District of Columbi a such that a par ty might expect to be subjecte d to jurisdiction here. 4

There is some conflict amongthe authorities re g ardingwhether subsection (a )(4) 4 extends personal jurisdiction to the constitutional li mits of due proce ss. The Cranecourt noted that the fra

mers of the model leg islation from which D.C.’s long -ar m statute is derived intende d subsection (a )(4) to be more r estrictive than the constitutional max imum and sugg ested that “[subsection] (a)(4) of

the D.C. long -ar

m statute may

indeed stop short of the oute r limit of the constitutional space.” 814 F.2d at 762. At least one c ourt within this C ircuit has interpr eted § 13-423(a )(4) as “ more restric tive than the Due Process Clause of the Constitut ion.” Kopff v. 11The fa ct that a de fenda nt has direc ted his conduct towa rd the District of Columbia is insufficient to establish a “ persistent cour se of c onduct” in the District. F or example, courts have held that def

endants who pla ce te lephone c alls from anothe r state into the District have not eng ag ed in conduc t “in the District,” r eg ardle ss of the nature or fr equenc y of the tele phone ca lls. Tavoulareas v. Comnas , 720 F.2d 192, 194 ( D.C. Cir. 1983); see also Burman v. Phoe nix W orldwide Indus., Inc. , 437 F. Supp. 2d 142, 154 (D.D .C. 2006) (holdingthat approximately 1326 telephone c alls to the District does not constitute a “pe rsistent course of conduc t”). Occ asional trave l to the District is also insufficient. See F INCON Servs. , 681 F. Supp. 2d at 47- 48 (findingthat three unsucce ssful trips to soli cit business in the District did not rise to the requisite leve l); Burman , 437 F. Supp. 2d at 153-54 ( findingthat attendanc e by defe ndants’ employ ees a

t “continuingeducation prog rams, seminar s, and conf ere nces” in the District, with no evidenc e that their attendance was re gular or pe rsistent, did not satisfy subsection (a )(4) ); Am. Ass’n of Cruise Passengers v. Cunard Line, Ltd. , 691 F. Supp. 379, 381 (D.D .C. 1987) (finding that “spora dic attenda

nce at trade a ssociation meeting s” in the District wa s insufficient under subsection (a )(4) ). Battaglia , 425 F. Supp. 2d 76, 82 (D.D .C. 2006). Howeve r, there is lang uag e in Etchebarne

Bourdin that sug g ests the D.C. Court of Appea ls would interpret subsec tion (a)( 4) to the constitutional li mit. See 982 A.2d at 762 (“ This narrow rea ding of

subsection (b)’ s nexus require ment as a due proce ss safeguard is consistent with ‘Cong ress’s intent to provide the District of Columbia with a long a rm statute equivale nt in scope to those alre ady in effe ct in Maryland and Vir g inia,’ the c ourts of which ha d interpre ted their statutes to ‘pe rmit the exercise of per sonal jurisdiction over nonre sident defe ndants to the extent permitted by the due pr ocess clause of the United States Constitution.’” (quoting Envt’l Re search I nt’l, Inc. v . Lockwood Gree ne Eng’rs, I

nc. , 355 A.2d 808, 810-11 (D .C. 1976)); see also Harris v. Om elon , 985 A.2d 1103, 1105 n.1 (D.C. 2009) (“ The District of Columbia’s long -ar m statute is co-extensive with the re ach of

persona l jurisdiction permitted under the Due Process Clause.” ) Ultimately , the Court finds that it need not decide this question, and theref ore it shall ana ly

ze subsection (a) (4) separ ately from the c onstitut ional require ments. 12Def endants who ma intain websites ac cessible to District re sidents may demonstrate a “per sistent course of

conduct” if their conta cts with the District are substantial enoug h. For example, in Blumenthal v. Drudge , 992 F. Supp. 44 (D.D .C. 1998), the cour t held that there was jurisdiction over a de fenda nt who had alleg edly

defa med two White House employ ees by publishing a story

about them on his g ossip website, the “D rudg e Report.” After examining all of the de fenda

nt’s contac ts with the forum, the cour t held that jurisdiction ex isted based on: (1) the intera ctive natur e of de fenda nt’s website a cce ssible to D.C. residents; (2) the r egular distribution of gossip news to D.C. re sidents by email and r elated me ans over the interne t; (3) defe ndant’s solicitation and re ceipt of c ontributions from D.C. residents ($250 re ceive d from 15 D.C. residents); (4) the ava ilability of the we bsite to D.C. residents 24 hours a da y ; (5) the defe ndant’s travel to the District for a n interview on C-SPAN; and (6) defe ndant’s conta ct with D.C. residents who pr ovide him with gossip for r eportingon his website. 992 F. Supp. at 57; see also Heroes, Inc . v. He roes Found. , 958 F. Supp. 1, 5 (D.D .C. 1996) (findingthat defe ndant’s website a nd adver tisement in the Washington Post provided a suff icient basis for jur isdiction). The leve l of interac tivity

of the we bsite has g ener ally been c onsidered significant in dete rmining whether a we bsite operator is transac ting business in the District or othe rwise tar g etingthe forum. See, e .g. , Gorman v. Am eritrade Holding Corp. , 293 F.3d 506, 512- 13 & n.5 ( D.C. Cir. 2002) (f inding that g ener al jurisdiction exi sted over c orporation “doing busine ss” in the District throug h its website, which ena bled D.C. reside nts to open broker ag e ac counts, transmit funds elec tronically , buy

and sell sec urities, and per form other financ ial transac tions). Howeve r, cour ts have g ener ally

rec og nized that maintenance of a w ebsite, with nothing more , is not enoug h to trig g er jurisdiction. See G TE New Media Servic es Inc . v. Be llSouth Corp. , 199 F.3d 1343 ( D.C.
13Cir. 2000) (“[P] ersona l jurisdiction surely cannot be based solely

on the ability

of District residents to ac cess de fenda nts’ websites, for

this does not by

itself show any

persistent cour se of conduct by

the def endants in the District.” ); Doe I v. State of Israel , 400 F. Supp. 2d 86, 121-22 (D.D.C. 2005) ( holding that de fenda nts’ website, whic h allowed D.C. re sidents to make financ ial donations and provide c ontact informa tion, was targ eted at a local c ongreg ation in New Jersey and did not provide a

basis for jurisdiction). District of Columbia courts have also rec ognized that certa in activities which occ ur in this jurisdi ction due its status as the nation’s ca pital should not be considere d in the jurisdictional analy sis. For e x ample, “this Circuit has consistently held that the business conduc t of news g ather ing or g anizations withi n the District ca nnot be used to establish per sonal jurisdiction over an out-of- state new s ag ency .” Lohrenz v. Donnelly , 958 F. Supp. 17, 19 (D.D .C. 1997). Thus, under the so-ca lled “new sg ather ing e x ception,” the collection of ne ws in the District for dissemination elsewher e does not c onstitut e “busine ss” or a “per sistent course of

conduct” for the purposes of

assessingjurisdiction under the long -ar m statute. See M

oncrief v. Lex ington Herald-Leade r Co. , 807 F.2d 217, 222- 24 (D.C. Cir.1986). The e x ception “is intende d to protect

a new spaper

whose only

persistent cour se of c onduct in the District is the maintenanc e of a n office there for g ather ing ne ws from be ing subje ct to the jurisdiction of the District’s c ourts.” Id. at 222. Thus, the prototy pical ca se involving the exception is a newspape r with a ne g ligible District audienc e that maintains a bur eau in the D istrict. See id. at 219, 221 (findingthe newsg ather ing e x ception applied to a Kentucky

newspa per w ith only

twenty -two paid mail subscriptions in the District of Columbia that operate d an off ice in the District f

or the sole purpose of

g ather ing ne ws); Shirlingt on Limousine & Transp., Inc. v. San Die go Union-Tribune , 14566 F. Supp. 2d 1, 4 (D.D .C. 2008) (findingthe cour t did not have per sonal jurisdiction over California ne wspape r whose only persistent cour se of c onduct in the District of Columbia was a news bure au eng ag ed in no func tions aside from new sg ather ing) . Courts have a lso ge nera lly held that a def endant’ s contac ts with the United States gove rnment do not fac tor into the persona l jurisdiction analy sis. See Crane , 814 F.2d at 761-62 (citingcase s). The so- called “ g overnme nt contac ts” exception is intended to (1) prote ct the right of citizens to freely acc ess and pe tition t he g overnme nt and (2) pr event the D istrict of Columbia from becominga national judicial c enter based solely

upon parties’ contac ts with the feder al g overnme nt. Envtl. Rese arch Int’l v

. Lockwood Gree ne Eng’rs , 355 A.2d 808, 813 (D.C. 1976). Wit h these c onsiderations in mind, the Court shall consider De fenda nts’ contac ts with the forum. A. SPLC’s Cont acts with the Distri ct of Columbia L ewy contends that SPL C has maintained a “ persistent cour se of c onduct” in the District of Columbia by : (1) maintainingan intera ctive we bsite available to D.C. residents 24 hours per day through which re sidents can sig n up for infor mation and donate to SPL C; (2) distributing its Teaching Tolerance and IntelligenceReport mag azines to D.C. residents throug h the mail; (3) soliciting and r ece iving millions of dollars in donations from D.C. residents by mail, phone, and over the internet; (4) sendingits employ ees to the D istrict for tra ining se ssions and confe renc es; (5) monitoringhate groups in the District of Columbia; and (6) g ather ing inf ormation from

source s in the District of Columbia for its publications. SP L C contends that these c ontacts do not amount to a “per sistent course of conduct” and that the Court “c annot simply ag g reg ate a ll of SPL C’s contac ts in the District” as evide nce of specific jurisdiction under subsec tion (a)( 4). See
15Def

s.’ Supp. Mem. at 5. Howe ver, the case cited by Def endants for

this non-ag g reg ation proposition, Savage v . Bioport, Inc. , 460 F. Supp. 2d 55 (D.D .C. 2006), is inapposite beca use it involved the conne ction betwee n defe ndant’s conta cts and the c laim asserte d under the “tra nsactingany

business” prongunder subse ction (a) (1). See 460 F. Supp. 2d at 59-61. Courts have r outinely

considere d the totality

of def endants’ c ontacts in assessingthe “plus fa ctors” of subsection (a )(4)

. See, e .g. , Blumenthal , 992 F. Supp. at 57 (c onsideringall of def endant’ s contac ts with the forum); Burman , 437 F. Supp. 2d at 153-56 ( same). Ba sed on a c are ful consider ation of the re levant pre cede nts and all of the jurisdictional fac ts, the Court finds that SP L C has eng ag ed in a pe rsistent course of conduc t in the District of Columbi a suff

icient to establish persona l jurisdiction under subsection (a )(4) . Duringthe y ear s leadingup to the publication of the “ State of De nial” ar ticle, SPL C created a ne twork of c ontacts in the District of Columbia throug h its website and other means to distribute thousands of copie s of its mag azines and solicit mill ions of dollars in donations to support its operations. SP L C also sent its employ ees to the D istrict of Columbia for trainingprog rams and c onfer ence s and 5 collecte d information on hate groups in the District of Columbia. These c ontacts ar e similar to those the Court found suff icient in Blumenthal ; in fact, SPL C’s contac ts with the District are much more e x tensive than the de fenda nt in Blumenthal

beca use it has a much la

rg er ne twork of D.C. residents who c ontribute money and re ceive publications and does not re ly solely on its website to distribute its materials. SPL C argues that its effor ts to moni tor hate groups in the District and c ollect other

Be cause of the “ g overnme nt contacts” exception, the Court does not consider visits 5 made by SPL C employ ees f

or the purpose of mee ting with fe dera l gove rnment off icials. The fac ts show that SP L C employ ees of ten trave led to meet with nong overnme ntal org anizations.

16information from sourc es in the District should be excluded fr om the analy sis under the

“new sg athering e x ception.” H oweve r, that exception is intended to protec t news org anizations who cove r national ne ws for a local audie nce outside the District. See M oncrief , 807 F.2d a

t 222 (“[W] hat is beingprotec ted by the newsg ather ing e x emption is the right of subscribers within the

are a of immediate circ ulation of a ne wspape r or mag azine to rec eive ne ws of national inter est which must be g ather ed in the District of Columbia.” ( citation and quotation marks omitted)). By contra st, SP L C’s newsg ather ing e ffor ts (to the extent they

can be char acte rized as such ) ar e 6 aimed at a

national audienc e that includes D .C. residents. Ther efor e, the Court may consider contac ts such as SPL C’s sendingHolthouse to attend a N eo-N azi rally in the District as par

t of a “per sistent course of

conduct” for pur

poses of subsec tion (a)( 4). The Court notes, how ever , that these limited “new sg ather ing” contac ts are not de terminative of the Court’s conclusion that jurisdiction ex ists; S PL C’s numerous other c ontacts with the District would cr eate jurisdiction even if the “ne wsg ather ing e x ception” did a pply

. SPL C also argues that the distribution of mag azines and other materials to D.C. reside nts cannot be considere d conduct “ in the District” bec ause unde r the law of def amation, the defa matory “ac t” is the initial publi cation of the statement, which oc curr ed outside the District, and not its subsequent circ ulation. See M oncrief , 807 F.2d a

t 220-21. Howe ver, a s expl ained above, subse ction (a) (4) doe s not require a nexus betwee n the “pe rsistent course of conduc t” and the tortious act occ urringoutside the District that g ives rise to jurisdiction. There fore , the

L ewy arg ues that SPL C’s rese arc h for qua rterly publications such as Intelligence Report 6 does not qualify

as “ne wsg ather ing” beca use, in the ag e of 24- hour new s cycles, the infor mation published in the mag azine is too old t o be “ne ws.” See Pl.’s Reply at 7-8. The Court need not adopt L ewy ’s nar

row de finition of news to find that the new sg ather ing e x ception does not a pply

. 17circ ulation of materia ls to D.C. residents may be conside red se parately from the a lleg ed defa matory conduct. Althoug h Def

endants have cited se vera l case s involving the c irculation of alleg edly defa matory materia ls in the District, none of the c ases c ited held that circ ulation of materia ls could not amount to a “per sistent course of conduct” under subse ction (a) (4). F or example, in Moncrief

, the cour t held that there was no jurisdiction under subse ction (a) (4) beca use the only

alleg ed “pe rsistent course of conduc t” in the District was the defe ndant newspa per’ s maintenanc e of a

n office here , and that conta ct was subjec t to the “newsg ather ing exception”; the cour

t, perha ps understanda

bly , did not consider whe ther the ne wspape r’s twe nty
two paid mail subscriptions in the District (amountingto $3000 per year in reve nue) mig ht provide a basis for jurisdiction. See 807 F.2d at 218-19, 221-22. In McFarlanev. Esquire Magazine , the cour

t held that the def

endant’ s sale of two a

rticles to D.C.-base d publications duringhis entire journa lism caree r did not qualify as a “ persistent” c ourse of conduct. See 74 F.3d at 1300-01. SPL C’s distributi on of mag azines indicates a r elationship with its D.C

. 7 subscriber s that is far more extensive than the telephone calls that have been r ejec ted as out-of

forum conduc t for purpose s of subsection (a )(4)

. Cf. Blumenthal , 992 F. Supp. at 57 (f inding that regular distribution of newsletter by email to D.C. residents supports jurisdiction under subsection (a )(4) ). SPL C argues that its circulation to D.C. residents is only a small fra ction of

Def endants a lso cite Reube r v. United States , 750 F.2d 1039 ( D.C. Cir. 1984), overruled 7 on other grounds by Kaufmann v. Anglo-Am . Sch. of Sofia , 28 F.3d 1223 ( D.C. Cir. 1994), in which the c ourt found ther e wa s no jurisdiction over a de fenda nt whose alleg edly

defa matory letter wa s eventua lly

distributed in the District. See 750 F.2d at 1050. Howeve r, the Reube r court found that the plaintiff had f ailed to make a

n arg ument based on subse ction (a) (4) be fore the district court a

nd that there was no fa ctual basis in the re cord f or makingone. And in La Pointe v. Van Note , No. 03-2128, 2004 WL3609346 (D.D.C. 2004), a lso cited by Def endants, the cour t found that the plaintiff ha d failed to a ssert which f acts de monstrated a “ persistent course of conduc t” and ultimately reje cted the pla intiff’s conspira cy theory of jurisdiction. 18its nationwide circulation. See Def s.’ Supp. Mem. at 10-11. B ut the Court must consider SPL C’s contac ts with thi s forum in absolute ter ms, without reg ard to whe ther jurisdiction might lie elsewhe re. SPL C also argues that its fundraisingactivities in the District are not substantial enoug h to warr ant jurisdiction under subsec tion (a)( 4). SPL C relies on Burman v. Phoe nix W orldwide Industries, Inc. , in which the cour t found that the def

endant c ompany ’s re ceipt of $30,000 in

reve nue fr om contrac ts with seven D.C. clients did not constitute “substantial reve nue” a s define d in subsection (a) (4). See 437 F. Supp. 2d at 155. Howe ver, the Burman court found that “the qua lity

and natur e of [the def

endant’ s] contacts repr esent a neg ligible r elationship with this forum” be cause the servic es provided to D.C. c lients arose out of the defe ndant’s pre sence in Florida and ther e wa s no continuing c ourse of conduct dire cted at the District. Id. at 155-56. B y contra st, SP L C directly

targ ets D.C. residents through its soli citation prog ram a nd has ra ised over $3 milli on from them in the last dec ade. T he fa ct that SPL C may do the same in other

states does not detrac t from its course of conduct he re. 8 In sum, the Court finds that SP L C has eng ag ed in a “ persistent cour se of c onduct” in the District of Columbia by

maintaining a

website that D.C. re sidents use to interac t with SP L C, regularly distributing publications to hundreds of D .C. residents over the interne t and through the mail, soliciti ngmilli ons of dollars in donations from D.C. re sidents throug h various mea ns, sendingemploy ees to the D istrict for conf ere nces a nd meeting s with nongove rnmental org anizations, and collectinginformation in the District for its we bsite and national publications.

Def endants’ r eliance on Hughes v . A.H. Robins Co. , 490 A.2d 1140 (D.C. 1985), is 8 inapposite bec ause that case did not involve the application of the D istrict of Columbia’s longarm statute. 19There fore , SPL C is amenable to suit under D.C. Code § 13- 423(a) (4).

Howeve r, bef

ore this Court can e x erc ise jurisdiction over SPL C, it m ust find that doing so would not offend “ traditional notions of fair pla y and substantial justice” a s require d by the constitution’s gua

rante e of due proce ss. Int’l Shoe Co. v. W ashington , 326 U.S. 310, 316 (1945). “The re a re no ‘ mecha

nical tests’ or ‘ talismanic formulas’ used by courts to deter

mine whether the asser tion of persona l jurisdiction is appropr iate in a pa rticular c ase.” Armenian Ge nocide Museum &

Mem ’l, Inc. v . Cafesjian Family Found., Inc. , 607 F. Supp. 2d 185, 189 (D.D .C. 2009) (quoting Shoppers Food W arehouse v . Moreno , 746 A.2d 320, 329 (D.C. 2000)) . In weig hing de fenda

nts’ various conta cts, the Court must consider whe ther “ the def endant’ s conduct a nd connec tion with the forum state ar e such tha t he should rea sonably

anticipate be ing haled into cour

t there.” W

orld-W ide Volkswagen Corp. v. W oodson , 444 U.S. 286, 297 (1980). The Supreme Court has held that a de fenda nt’s “re gular c irculation of mag azines in the forum State is sufficie nt to support an asser tion of jurisdiction in a libel action based on the contents of the ma g azine.” Keeton v. H ustler Magazine, Inc

. , 465 U.S. 770, 773-74 (1984). The Supreme Court has a lso held that a cour t may exercise pe rsonal jurisdiction over a n out-of-state defe ndant who knowing ly cause s injury

in the forum through intentional tortious conduct. See Calder v. Jone

s , 465 U.S. 783, 789-91 (1984) ( holding that a California c ourt could exercise jurisdiction over the nonre sident author and e ditor of a de famatory article whose a lleg ed wrong doing w as “intentionally direc ted at a Ca lifornia re sident”). He re, the evidenc e shows that in 2009, SP L C distribut ed over a thousand c opies of the IntelligenceReport to D.C. residents, and SPL C’s alleg ed def

amation was dire cted at L ewy , a D.C. re sident. Ba sed on these f acts a nd SPL C’s numerous other c ontacts with the District, SPL C could rea sonably anticipate be ing
20subject to jurisdiction in a District of Columbia court. Ther efor e, the e x erc ise of jurisdiction

over SPL C comports with the constitutional requirements of due proce ss. Be cause jurisdiction is proper under the constitution and D.C.’s long- arm statute, the Court shall deny

Def endants’ motion to dismiss with respec t to SP L C. B. Holthouse’s Contacts with t he District of Columbia Although the Court has conc luded that it has persona l jurisdiction over SPL C, the Court must determine sepa

rate ly whether Def endant Holthouse ha s eng ag ed in a “ persistent cour se of conduct” in the District. “[A]s a g ener al rule, c ourts cannot e x ert jursidiction over individual corpor ate of

fice rs or e mploy ees ‘just because the cour t has jurisdiction over the c orporation.’” Kopff v. Battagli a , 425 F. Supp. 2d 76, 84 (D.D .C. 2006) (quoting Flocco v . State Farm Mut. Auto. Ins. Co. , 752 A.2d 147, 162 (D.C. 2000). Mor eover , the D.C. Circuit has re cog nized that the jurisdictional contac ts for the a uthor of a de fama

tory article must go be y ond the alleg ed defa matory conduct. See M

cFarlane , 74 F.3d at 1300 (“ [W ] riting an ar ticle for a publication that is circulate d throug hout the nation, including the District, hardly constitutes doing or

soliciting business, or eng ag ing in a persistent cour se of c onduct, withi n the District.”) Her e, L ewy

has provided e vidence demonstratingthat Holthouse has the f ollowing

connec tions to t he District of Columbia: (1) dur ing the course of re sear ching“State of D enial,” he made a telephone call to an individual in the District; (2) he has occ asionally written ar

ticles for national publications that are distributed in the District; (3) and he tr avele d to the District four times betwee n 2000 and 2008. As e x plained above , the telephone call (which was unr eturne d prior to the publication of “ State of De nial”) doe s not count in the jurisdictional analy sis because it is notconsidere d activity within the District. The handf ul of article s that L ewy

has written that

21wer e distributed in the District do not amount to a “pe rsistent” cour se of c onduct. See

McFarlane , 74 F.3d at 1301. Sim ilarly , Holthouse’s trave l to the District is too i nfre quent to provide a basis for jurisdiction. L ewy conce des that “D efe ndant Holthouse’s jurisdictional conta cts with the District of Columbi a under

subsection (a )(4) are substantially less than SPL C’s” and a

rgues that “conside rations of judicial e fficie ncy milit ate in fa

vor of litigating Plaintiff’s e ntire def amation

case in the District of Columbia.” Pl.’s Reply at 17. Howe ver, the Court cannot exerc ise jurisdiction over a de fenda nt based on c onsiderations of judicial e fficie ncy . The Court finds that Def endant Holthouse ha s not eng ag ed in a “ persistent cour se of c onduct” in the District of Columbi a and the ref

ore jurisdiction is not proper unde r D.C. Code § 13-423( a)( 4). Ac cording ly , the Court shall g rant De fenda nts’ motion to di smiss wit h respe ct to Def endant Holthouse. IV. CONCLUSION For the fore g oing r easons, the Court sha ll GRANT-I N-PART Def

endants’ [7] Mot ion to Dismiss wit h respe ct to Def endant Holthouse a

nd DENY- I

N-PART with respe ct to Def endant SPL C. An appropr iate Or der a ccompa nies this Memorandum Opinion.

/s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

22