The Review 1, Professor Cole 0

By Peter Arnold | Friday, April 21, 2006

Originally Published October 24, 1984

In March 1983, Chairman of the Music Department William Cole lodged a $2.4 million libel suit against the Hanover Review, Inc., which publishes The Dartmouth Review, and three student editors. Cole charged that an assessment of his classroom behavior published in the Review and written by Laura Ingraham caused him mental, emotional, physical, and financial distress, yet he specified not a single inaccuracy in the story. Eighteen months later, in what is the first major development of the case, District Judge of Vermont Franklin S. Billings, Jr. accepted the advice of a federal magistrate and “ordered” that individual defendants Laura Ingraham, E. William Cattan, Jr., and Dinesh D’Souza [be] dismissed from the case.”

Thus, The Dartmouth Review has now won round one in what has become commonly known as “The Cole Case.” Yet the suit against The Hanover Review, Inc. remains.

From the suit’s outset, The Dartmouth Review’s lawyer, Miss Blair Soyster of the New York law firm Rogers and Wells, drew a distinction between the suit against the corporation and the suits against the three students. Her contention was that the United States District Court for the District of Vermont, which is where Cole and his lawyer initiated the suit, lacked in personal jurisdiction over the three individuals since they all lived, studied, and worked in the state of New Hampshire.

The reasoning behind Cole and his lawyer’s decision to litigate in Vermont, as opposed to New Hampshire where every event in question transpired, may seem perplexing. It is easily understood, however, when one considers that half of the $2.4 million suit is for punitive damages—New Hampshire law forbids suing for punitive damages.

On August 16, 1984, the federal magistrate, Jerome J. Niedermeier “recommend[ed] that defendants Ingraham, Cattan, and D’Souza motion to dismiss for lack of personal jurisdiction be granted.” According to Vermont law, either party may object to a magistrate’s report within ten days after service by filing a written objection with the clerk of the court. Cole’s lawyer, John Long, made no objection and refused to discuss the matter with the Review: “I can’t talk to you. You’ll have to talk to your lawyer.”

One rather humorous—and telling—part of the Magistrate’s report deals with Cole’s contention that certain statements made by Cattan and D’Souza to Vermont newspapers were slanderous. There is general agreement in the courts that personal jurisdiction of the court may be asserted over a non-resident due to a single, allegedly defamatory, telephone conversation. Yet it is crucial that the party on the receiving end of the defendant’s remarks (the interviewers) be in the court’s own state, in this case Vermont. Cole and his lawyer not only submitted no evidence that the interviewing reporters were in Vermont at the time of the conversations, but one of the memorandums that were filed with the clerk contained a statement that the interviews were given in Hanover.

According to Miss Soyster, Cole and his lawyer are relying on a case just recently decided by the Supreme Court, Calder v. Jones, in which the court held that a state may have personal jurisdiction over a writer and editor if “the focal point both of the story and of the harm suffered” is in the forum state of Vermont.

Yet both Dartmouth and the places of residence and work of the three editors are in New Hampshire; ergo, the Calder decision cited by Cole and his lawyer was not controlling. Vermont’s long-arm statute authorizes a personal jurisdiction over a non-resident only “if it appears that the contact with the state by the party . . . is sufficient to support a personal judgment against him.”

Reaction to the ruling was predictably exuberant. Said former Editor-in-Chief Cattan, “Of course I’m very pleased. I think Cole’s lawsuit was purely and simply an attempt to harass students who publish The Dartmouth Review and to discourage them from exercising their First Amendment rights of criticism and comment. . . . [The case] is flimsy and based on sheer malice.” Laura Ingraham said the decision was a “victory not only for the individual litigants, but also for The Dartmouth Review.”

As for the one final suit against The Hanover Review, Inc., Miss Soyster does not characterize it as part of a “three-down-one-to-go” case, as the suit against the Review “turns on issues which were not addressed with the successful motion to dismiss the action against the students.” Summarizing his feelings, Cattan asserted, “I still stand by the facts in the story [and] the right of a student newspaper to criticize questionable professors. I would do it again.”

Commented Ingraham, “Half the fight is over. Now it’s time to take the gloves off.”

The Review 1, Professor Cole 0

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