                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1692

                   TICKETMASTER-NEW YORK, INC.,

                      Plaintiff, Appellant,

                                v.

                        JOSEPH M. ALIOTO,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]
                                                       

                                             

                              Before

           Torruella, Selya and Stahl, Circuit Judges.
                                                     

                                             

     Jonathan  W.  Lubell,  with  whom Malcolm  I.  Lewin,  Frank
                                                                 
McClain-Sewer,  Morrison Cohen  Singer  &amp; Weinstein,  Stephen  R.
                                                                 
Wainwright, and Wainwright,  Wainwright, Wainwright, Wainwright &amp;
                                                                 
Wainwright were on brief, for appellant.
          
     James A. G. Hamilton, with whom  Theodore F. Schwartz, Jerry
                                                                 
Cohen, and Perkins, Smith &amp; Cohen were on brief, for appellee.
                                 

                                             

                          April 13, 1994

                                             

          SELYA, Circuit  Judge.  This case  probes the frontiers
          SELYA, Circuit  Judge.
                               

of the  doctrine of  personal jurisdiction  in a  context fraught

with  constitutional implications.    The issue,  simply put,  is

this:   Can a Massachusetts-based  court, consistent with the Due

Process Clause,  assert jurisdiction over  a California  resident

who  is alleged  to  have made  a  defamatory comment  during  an

unsolicited  telephone  interview with  a  staff  reporter for  a

Massachusetts newspaper?  We conclude, on the facts of this case,

that the lower court correctly disclaimed jurisdiction.

I.  BACKGROUND

          Inasmuch as the district  court dismissed this suit for

failure of  the plaintiff to  make a  prima facie  jurisdictional
                                                 

showing, see Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st
                                         

Cir. 1992), we draw the facts from the pleadings and the parties'

supplementary   filings,   including  affidavits,   taking  facts

affirmatively  alleged  by  plaintiff   as  true  and  construing

disputed facts in  the light  most hospitable to  plaintiff.   Of

course,  we   do  not  credit  conclusory   allegations  or  draw

farfetched  inferences.    See  generally  Dartmouth  Review   v.
                                                            

Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (discussing line
               

between "facts"  and "conclusions" for  purposes of  a motion  to

dismiss).

          Defendant-appellee  Joseph  M.  Alioto  is  an attorney

practicing  in California.    Among his  other  cases, Alioto  is

pressing  a  class  action   in  the  California  courts  against

Ticketmaster-Southern  California,   Inc.   (T-SC).     T-SC,   a

                                2

California-based corporation, is affiliated with Ticketmaster-New

York,  Inc. (T-NY),  a Delaware  corporation.   Both Ticketmaster

entities  are  engaged  in  the  business  of  selling ducats  to

entertainment events.

          The  litigation  between  T-NY  and  Alioto  finds  its

genesis in the decision  by the Boston Globe, a  daily newspaper,
                                            

to  undertake   an  investigation   into  pricing  practices   on

"Ticketmaster's"  part.1   In  conducting  this investigation,  a

Globe reporter conversed by telephone with Alioto.  The plaintiff
     

does not allege,  and the  record does not  suggest, that  Alioto

dialed the telephone or otherwise initiated the call.  The record

is equally  barren  of  any  showing that  Alioto  solicited  the

inquiry2  or that  more than  one call  occurred.   It  is clear,

nevertheless,  that  Alioto, who  was  in  California, knew  when

speaking  that  his  comments would  inform  a  story  slated for

publication in a newspaper circulated chiefly in Massachusetts.

          The investigation  culminated  in a  front-page  expose

that  hit the newsstands on Sunday, September 20, 1992, under the

banner headline,  "Rising ticket fees pad concert  profits."  The

ensuing article contained  over fifty paragraphs.   Well past the

midpoint, the article mentioned  mounting complaints about  price

                    

     1The article that capped this investigation makes no attempt
to distinguish among corporate entities (although it contains one
vague  reference to  "Ticketmaster and its  affiliates").   At no
point does the article refer by name to either T-NY or T-SC.

     2Although there is  a passing  allusion in the  record to  a
press  release issued by Alioto regarding  the lawsuit against T-
SC,  there is  no indication  that he  forwarded this  release to
Massachusetts or that it sparked the Globe's story.
                                          

                                3

gouging in New York and California.  It then reported that "three

class action antitrust lawsuits" had recently been filed "against

Ticketmaster" in California.  There followed the paragraph around

which this controversy revolves  (buried deep in the body  of the

article).   We quote  the allegedly offending  paragraph in full,

and,  in the  interests  of context,  add  the beginning  of  the

following paragraph.

               Attorney Joseph M. Alioto, who filed one
          of the suits, charged that kickbacks are  the
          key  to  Ticketmaster's California  monopoly.
          "They're nothing more than a straight bribe,"
          he said.
               Ticketmaster and its affiliates  took on
          their   California  adversaries   in  typical
          aggressive fashion, . . .

          Based  on  this  reported comment,  T-NY  brought  suit

against  Alioto  in the  United  States  District Court  for  the

District  of Massachusetts.   Invoking diversity jurisdiction, 28

U.S.C.    1332 (1988), it alleged that Alioto, with the requisite

intent, conveyed and/or caused  to be conveyed certain defamatory

impressions of and  concerning T-NY, namely, that T-NY engaged in

bribery and related criminal conduct.

          In due season, Alioto moved to dismiss.  T-NY objected.

The district judge heard  oral argument and dismissed  the action

for lack  of in personam jurisdiction,  concluding that appellant
                        

failed  to make  the  requisite showing  at  every stage  of  the

obligatory jurisdictional inquiry  under the due  process clause.

See United Electrical Workers v. 163 Pleasant St. Corp., 960 F.2d
                                                       

1080, 1089 (1st Cir. 1992) (Pleasant St. I) (discussing nature of
                                          

requisite inquiry).   Two perceptions figured  prominently in the

                                4

district  court's  reasoning.    First,  the  defendant  did  not

actively  shape  and focus  the  reporter's  story, but,  rather,

passively  responded to a telephone call.   Second, the allegedly

defamatory  comment dealt  with  the California  activities of  a

California corporation, T-SC, and did not pertain to T-NY.

          Plaintiff appeals.   Because the court  below dismissed

the  case  on legal  grounds,  without  convening an  evidentiary

hearing  or resolving contested  evidentiary questions, appellate

review is plenary.  See United Electrical Workers v. 163 Pleasant
                                                                 

St. Corp., 987  F.2d 39, 43-44 (1st Cir. 1993) (Pleasant St. II);
                                                               

Boit, 967 F.2d at 675.   In conducting this tamisage, we  are not
    

wedded  to the  district  court's rationale,  but remain  free to

affirm the judgment below  on any independently sufficient ground

made manifest by the record.   See  Martel v. Stafford,  992 F.2d
                                                      

1244, 1245 (1st Cir. 1993).

II.  ANALYSIS

          To subject a non-resident defendant to its jurisdiction

in a  diversity case, a court    and for this  purpose, a federal

court  exercising  diversity   jurisdiction  is  the   functional

equivalent  of  a state  court sitting  in  the forum  state, see
                                                                 

General Contracting  &amp; Trading Co.  v. Interpole, Inc.,  940 F.2d
                                                      

20,  23 n.4  (1st Cir. 1991)    must  find contacts  that, in the

aggregate,  satisfy the  requirements of  both the  forum state's

long-arm  statute and  the Fourteenth  Amendment.3   See Pleasant
                                                                 

                    

     3To  be sure,  the  extent of  the necessary  jurisdictional
showing  varies   depending  upon  whether   a  litigant  asserts
jurisdiction over an adverse party under a theory of "general" or

                                5

St. I, 960 F.2d at 1086 ("In Massachusetts, a court may  exercise
     

personal   jurisdiction  over   a  foreign   defendant  if   such

jurisdiction  is authorized  by  state statute  or  rule and  its
                                                            

exercise does not offend due process."); Bond Leather Co. v. Q.T.
                                                                 

Shoe Mfg.  Co., 764 F.2d 928, 931 (1st Cir. 1985) (similar).  The
              

district court  determined that  T-NY satisfied neither  of these

two prerequisites. We explore these determinations.

                      A.  The State Statute.
                                           

          The applicable Massachusetts statute,  familiarly known

as "section 3(c)," deals with torts committed by persons who have

no  ongoing relationship with the  forum state.   The language of

this provision  tracks the Uniform  Interstate and  International

Procedure Act,  and  differs  significantly  from  other  leading

formulations.   See Murphy  v. Erwin-Wasey,  Inc., 460  F.2d 661,
                                                 

663-64  (1st Cir.  1972); see  also Margoles  v. Johns,  483 F.2d
                                                      

1212, 1216 (D.C. Cir. 1973).  The statute states:

               A    court    may   exercise    personal
          jurisdiction over a person, who acts directly
          or  by an agent, as  to a cause  of action in
          law or equity arising from the person's . . .
                 (c)  causing tortious injury by an act
          or omission in this Commonwealth . . . .

Mass. Gen. Laws ch. 223A,   3 (1986).

          Although  the lower court did not reach the question of

jurisdiction under state  law, we have pondered  whether the case

might more appropriately be dispatched on that basis.  After all,

                    

"specific"  jurisdiction.    See  Donatelli  v.  National  Hockey
                                                                 
League,  893  F.2d  459,  462-63  (1st  Cir.  1990)  (elucidating
      
standards and  enumerating differences).   Here, plaintiff's case
stands or falls on a theory of specific jurisdiction.

                                6

"[i]t has long been a basic tenet of the federal courts to eschew

the decision of cases on  constitutional grounds unless and until

all other available avenues of resolution [have been] exhausted."

Aggarwal v. Ponce Sch.  of Medicine, 745 F.2d 723,  726 (1st Cir.
                                   

1984).  But  here, as we explain below, the  state-law issues are

extremely  murky.  Thus, on  balance, we agree  with the district

court that it makes sense to  resolve the jurisdictional question

on constitutional grounds.

          In the  first place,  although logic suggests  that, on

these facts, the defendant  cannot be said to have  performed "an

act" in  Massachusetts, that suggestion is  not easily reconciled

with  Murphy.   There, we  ruled that  an allegedly  tortious act
            

committed  outside the  borders  of  Massachusetts,  purposefully

directed at the state  and intended to cause injury  there, could

constitute an  in-forum act within  the meaning of  section 3(c).

See Murphy, 460  F.2d at 664.  While Murphy  can be distinguished
                                           

on the  ground that it  was decided in the  context of fraudulent

misrepresentation, as opposed  to defamation,4 its interpretation

of section  3(c) is worded  in general  terms and its  reasoning 

conceivably could  be  transferred  to  the  defamation  context.

Despite  our  profound  reservations about  extending  the Murphy
                                                                 

                    

     4Appellant argues  that we  have already extended  Murphy to
                                                              
the  defamation arena  in Hugel v.  McNell, 886 F.2d  1 (1st Cir.
                                          
1989), cert. denied, 494 U.S. 1079 (1990).  We do not think Hugel
                                                                 
must  necessarily be  read so  broadly.   That case  turned on  a
construction  of the  New Hampshire  long-arm statute,  N.H. Rev.
Stat.  Ann.   510:4 (1993), and the New Hampshire statute, unlike
its Massachusetts  counterpart, does  not embody the  language of
the Uniform Act.

                                7

rationale,5 it spreads  a shadow of  uncertainty over the  state-

law issues.

          In  the second  place,  because we  are skeptical  that

defendant made  any remark  "of and  concerning" T-NY, we  harbor

doubts  whether  defendant  can  be said  to  have  inflicted any

"tortious injury" within the  meaning of section 3(c).6   We are,

however, hesitant to move beyond an expression of skepticism.  At

this  stage of the proceedings, appellant has not had the benefit

of  an  evidentiary hearing  or  a  comparable opportunity  (say,

access  to  the  full-dress  summary judgment  protocol  after  a

reasonable period of  discovery) for presenting proof.   Thus, it

may be too early to reach the state-law issues.

          To be sure, our reservations about one or both of these

                    

     5Intuitively, it would seem hard to characterize the act  of
publishing an allegedly defamatory remark outside the forum state
as an act  within the forum state.   In fact, no  fewer than five
courts applying long-arm statutes patterned after the Uniform Act
have eschewed  Murphy's reasoning  in the defamation  context and
                     
declined to assert  jurisdiction on  this basis.   See Reuber  v.
                                                             
United  States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Dietrich v.
                                                              
Wisconsin Patients Comp.  Fund, 485 N.W.2d 614,  617-18 (Wis. Ct.
                              
App. 1992); Wheeler  v. Teufel,  443 N.W.2d 555,  558 (Minn.  Ct.
                              
App.  1989);  Ramada  Inns,  Inc. v.  Drinkhall,  No.  83C-AU-ty,
                                               
unpaginated slip op. available  on LEXIS (Del. Super. Ct.  1984);
Zinz v. Evans  &amp; Mitchell Indus.,  Inc., 324 A.2d  140, 144  (Md.
                                       
App. 1974); see also St. Clair v. Righter, 250 F.  Supp. 148, 151
                                         
(W.D. Va.  1966) (using  similar reasoning to  interpret long-arm
statute  containing  "tortious  act"  language);   see  generally
                                                                 
Margoles,   483   F.2d    at   1218-19   (criticizing    Murphy's
                                                               
interpretation of language drawn from the Uniform Act).

     6In Massachusetts,  a court  has  power to  determine, as  a
matter of law, that a particular remark is not susceptible of any
defamatory construction "of and  concerning" the plaintiff,  and,
therefore, not actionable.  See Eyal v. Helen Broadcasting Corp.,
                                                                
583 N.E.2d  228, 232 (Mass. 1991).   At least one  court has used
this type of power to dismiss a defamation case on jurisdictional
grounds.  See Wyatt v. Kaplan, 686 F.2d 276, 282 (5th Cir. 1982).
                             

                                8

points  might well  be resolved upon  closer perscrutation.   But

there  is no need to sally forth.  Because it is apodictic that a

jurisdiction-seeking plaintiff must  satisfy the  demands of  not

only state law  but also the  federal Constitution, see  Pleasant
                                                                 

St. I,  960 F.2d  at 1086,  and because  T-NY's case  cannot pass
     

constitutional muster, we choose to bypass the statutory phase of

the jurisdictional  inquiry.   Consistent with this  approach, we

accept appellant's alleged facts as true for present purposes and

assume arguendo that the allegedly defamatory remark concerned T-
               

NY.

                   B.  The Due Process Clause.
                                             

          Divining personal  jurisdiction is "more an  art than a

science."  Donatelli v. National Hockey League, 893 F.2d 459, 468
                                              

n.7 (1st  Cir.  1990).7   In broad  outline, a  party wishing  to

validate a court's jurisdiction must show that "minimum contacts"

exist between the defendant  and the forum state.   International
                                                                 

Shoe Co.  v. State of Washington,  326 U.S. 310, 316  (1945).  To
                                

establish minimum contacts on  a theory of specific jurisdiction,

a  plaintiff  must first  demonstrate  that its  cause  of action

"arises  out of,  or relates  to" defendant's  contacts with  the

forum state,  Helicopteros Nacionales de Colombia,  S.A. v. Hall,
                                                                

466 U.S. 408, 414  (1984).  Then, the plaintiff  must demonstrate

the  deliberateness  of  the defendant's  contacts,  or,  phrased

                    

     7In  Donatelli,  893  F.2d  at  462-65,  we  chronicled  the
                   
historical  development of  due  process  standards for  personal
jurisdiction,  and  in  Pleasant St.  I,  960  F.2d  at 1089,  we
                                       
rehearsed the current state of the law.

                                9

another way, that the defendant "purposefully avail[ed] itself of

the privilege  of conducting activities within  the forum State."

Hanson v. Denckla, 357 U.S. 235, 253 (1958).
                 

          Even  if  a  plaintiff  succeeds in  making  these  two

showings, it is  not home  free.  The  defendant may  nonetheless

avoid having  to defend in  a strange place  if it  can establish

that allowing the suit  to go forward would be  inconsistent with

"fair play and substantial justice," International Shoe, 326 U.S.
                                                       

at 320.

          Following   this  analytic   model,  we   first  assess

relatedness  and   purposeful   availment  in   terms  of   their

applicability   to  the  case  at  hand.    Finding  them  to  be

inconclusive  in  this rather  odd  situation, we  then  mull the

extent  to  which  considerations  of  fairness  and  substantial

justice must influence our ultimate decision.

          1.  Relatedness.  The requirement that a suit arise out
          1.  Relatedness.
                         

of,  or  be  related  to,  the  defendant's  in-forum  activities

comprises the least  developed prong of the  due process inquiry.

See Pleasant St.  I, 960 F.2d  at 1089 &amp;  n.9; see also  Carnival
                                                                 

Cruise Lines v.  Shute, 499  U.S. 585, 589  (1991) (declining  to
                      

reach issue despite  having certified it for review).  We know to

a certainty  only  that  the requirement  focuses  on  the  nexus

between  the defendant's  contacts and  the plaintiff's  cause of

action.

          The Court has kept  its own counsel on the  question of

whether,  on  the one  hand, the  two  halves of  the relatedness

                                10

requirement are merely  two ways of  expressing the same  thought

or, on the other  hand, they are meant to import different values

into the  jurisdictional equation. See Helicopteros,  466 U.S. at
                                                   

415  n.10  (reserving  question).   For  our  part,  we think  it

significant that the constitutional catchphrase is disjunctive in

nature, referring  to suits "aris[ing] out of, or relat[ing] to,"
                                                 

in-forum activities.  Id. at 414 (emphasis supplied).  We believe
                         

that this added language portends added flexibility and signals a

relaxation  of the applicable standard.  A number of other courts

share this belief.  See, e.g., City of Virginia Beach v. Roanoake
                                                                 

River Basin Ass'n, 776  F.2d 484, 487 (4th Cir.  1985); Southwire
                                                                 

Co.  v. Trans-World Metals  &amp; Co., 735  F.2d 440, 442  (11th Cir.
                                 

1984); Thos. P. Gonzalez Corp. v. Consejo Nacional de Production,
                                                                

614 F.2d 1247, 1254  (9th Cir. 1980); see also In re Oil Spill by
                                                                 

the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir. 1983).
               

          While  we  do not  have occasion  today to  give fuller

content to the  relatedness requirement,8 it is evident  that the

requirement  serves two  functions.   First,  relatedness is  the

                    

     8At least one scholar reads a line of First Circuit cases as
going   beyond   this   point   and   proposing   an   innovative
constitutional  test.   See  Mark M.  Maloney, Specific  Personal
                                                                 
Jurisdiction and the "Arise From or  Relate to" Requirement . . .
                                                                 
What Does  it Mean? 50  Wash. &amp; Lee L.  Rev. 1265, nn.  118-130 &amp;
                   
accompanying  text  (1993).   In our  view,  these cases    which
interpret  the term "arising  from" as that  term is used  in the
long-arm statutes of Massachusetts,  see Fournier v. Best Western
                                                                 
Treasure Island Resort, 962 F.2d 126, 127 (1st Cir. 1992); Marino
                                                                 
v. Hyatt  Corp., 793 F.2d  427, 430  (1st Cir. 1986),  and Puerto
               
Rico, see Pizarro v. Hoteles Concorde Int'l, Inc., 907 F.2d 1256,
                                                 
1259-60 (1st Cir. 1990)   deal with state-law issues and  have no
real implications for the relatedness requirement specifically or
for constitutional analysis generally.

                                11

divining  rod that  separates  specific  jurisdiction cases  from

general jurisdiction cases.  Second,  it ensures that the element

of  causation  remains  in  the  forefront  of  the  due  process

investigation.   Even if the facts are  such that a court may not

dismiss  a given  case  for  lack  of  relatedness  per  se,  the
                                                           

relatedness   requirement,  in   serving  its   second  function,

authorizes  the  court  to take  into  account  the strength  (or

weakness) of the plaintiff's  relatedness showing in passing upon

the fundamental fairness of allowing the suit to proceed.

          In this  vein, it is important to  recognize that, when

the defendant  in a defamation  action is a  journalist's source,

the  link between the defendant's conduct and the cause of action

is  attenuated by  the intervening  activities of  third parties,

e.g.,  the reporter, the editor, the media outlet, and that those
    

intermediaries  shape,  amplify,  and  occasionally  distort  the

original  utterance.    This case  illustrates  the  point.   The

original  comment, technically  a  tort in  its   own  right  (if

defamatory),  inflicted no significant  injury, except insofar as

it  led to republication in  the ensuing newspaper  article   and

the form  and tone of the republication was not by any stretch of

the  most  active  imagination within  the  defendant's effective

control.

          2.   Purposeful Availment.   The question  here must be
          2.   Purposeful Availment.
                                   

phrased  in terms of whether  an individual who  merely answers a

telephone  call,  but,  having  done so,  knowingly  directs  his

comments into the forum  state, may be said to  have purposefully

                                12

availed himself of the privilege of conducting activities in  the

state.9

          To answer the question, we begin by considering McBreen
                                                                 

v. Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), a case that
                       

the district court thought highly pertinent and that Alioto touts

as dispositive.  There,  the Seventh Circuit refused to  sanction

the   exercise   of   jurisdiction  because   the   defendant,  a

journalistic source,  did not  initiate the  defamatory exchange,

and, being  unaware of either  the reporter's whereabouts  or the

magazine's  reach, could  not reasonably  have foreseen  that his

comment would cause injury in the forum state.  See id. at 28.
                                                       

          The  two conditions  identified  as salient  in McBreen
                                                                 

correspond to the two  cornerstones of purposeful availment.  One

cornerstone is foreseeability.  See,  e.g., Escude Cruz v.  Ortho
                                                                 

Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir. 1980); see also
                                                                 

World-Wide Volkswagen Corp. v. Woodson, 444  U.S. 286, 297 (1980)
                                      

(stating  that, for a court to assert jurisdiction, a defendant's

"conduct  and connection with the forum State [must be] such that

he should  reasonably anticipate being haled  into court there").

The second  cornerstone, less  frequently recognized as  such, is

                    

     9Appellant's  efforts to  reframe this  question by  hinting
that  Alioto instigated the call  are unavailing.   The burden of
proving jurisdictional facts rests on the shoulders  of the party
who  seeks to  invoke the  court's jurisdiction.   See  McNutt v.
                                                              
General  Motors  Acceptance  Corp.,  298 U.S.  178,  189  (1936);
                                  
Martel, 992 F.2d at 1247  n.5; Pleasant St. I, 960 F.2d  at 1090.
                                             
On this principle, and in the absence of even a representation or
firm  allegation to  the contrary,  we must  presume, as  did the
court below,  that  Alioto  played  no  part  in  initiating  the
telephone call.

                                13

voluntariness.  See   Vencedor Mfg. Co. v. Gougler  Indus., Inc.,
                                                                

557 F.2d  886, 891 (1st Cir. 1977); see also Burger King Corp. v.
                                                              

Rudziewicz,   471   U.S.  462,   475   (1985)   (cautioning  that
          

jurisdiction may not  rest on the "unilateral activity of another

party  or a third person").   In McBreen,  these two cornerstones
                                        

were  poorly  laid:   a failed  showing  of foreseeability  and a

questionable  showing   of  voluntariness  combined  to  form  an

insufficiently  sturdy   foundation   to  support   in   personam
                                                                 

jurisdiction.   The instant  case, which amalgamates  an arguably

successful showing  of foreseeability  with a dubious  showing of

voluntariness, is a  closer call.   We turn,  then, to a  broader

survey of analogous case law.

          Courts are  consentient that  when, as in  McBreen, the
                                                            

source  of an allegedly  defamatory remark  did not  initiate the

pivotal  contact,  and  the  in-forum injury  is  not  reasonably

foreseeable,  jurisdiction may  not be  asserted over  the source

based on  the comment.10   See, e.g.,  Madara v.  Hall, 916  F.2d
                                                      

1510,  1517-19 (11th  Cir. 1990); Mann  v. Tom James  Co., 802 F.
                                                         

Supp.  1293, 1296-97 (E.D. Pa.  1992).  However,  when the source

                    

     10Appellant characterizes  Hugel v. McNell, 886  F.2d 1 (1st
                                               
Cir.  1989), cert.  denied, 494  U.S.  1079 (1990),  and Advanced
                                                                 
Dictating Supply, Inc.  v. Dale,  524 P.2d 1404  (Ore. 1974),  as
                               
cases  in   which  courts  asserted   jurisdiction  even   though
defamatory  exchanges were  initiated by  persons other  than the
defendants.   We reject  the  characterization.   Our opinion  in
Hugel, read in context, makes it clear that the defendants played
     
an active role, meeting repeatedly with journalists and supplying
them  with audiotapes and other information.  See Hugel, 886 F.2d
                                                       
at  2-3.  The Advanced Dictating  court likewise found sufficient
                                
evidence to  conclude that the defendants  incited the reporter's
telephone call.  See Advanced Dictating, 524 P.2d at 1406-07.
                                       

                                14

takes the initiative and  causes foreseeable injury, jurisdiction

may lie.  See, e.g., Brown v. Flowers Indus., Inc., 688 F.2d 328,
                                                  

333-34 (5th Cir. 1982); Rusack  v. Harsha, 470 F. Supp. 285,  291
                                         

(M.D.  Pa. 1978); Fallang v. Hickey, 532 N.E.2d 117, 118-19 (Ohio
                                   

1988); see also supra note 10 and cases discussed therein.
                     

          This case  falls between the stools,  for, although the

source  did  not initiate  the  contact,  the resultant  in-forum

injury was  foreseeable.   In this posture,  the authorities  are

divided.    Two  courts  have declined  jurisdiction  under  such

circumstances.   See National Ass'n of Real  Estate Appraisers v.
                                                              

Schaeffer, Bates &amp;  Co., 1989 U.S.  Dist. LEXIS  3098 at *2,  *10
                       

(C.D. Cal. Mar. 23, 1989) (refusing to assert jurisdiction over a

Rhode Island source for comments made in the course of responding

to  a telephone call from a reporter for a California newspaper);

McDonald v. St.  Joseph's Hosp.,  574 F. Supp.  123, 124,  126-27
                               

(N.D. Ga.  1983) (similar; individual defendant  answered several

telephone  calls  from   a  hospital   interested  in   employing

plaintiff,  and  made  allegedly  defamatory  remarks  with  full

knowledge of  their potential consequences).  At  least one other

court has asserted jurisdiction in such a situation.  See Dion v.
                                                              

Kiev,  566 F.  Supp.  1387, 1388-90  (E.D. Pa.  1983) (exercising
    

jurisdiction  over a New York  defendant who answered a telephone

call from a reporter for a Philadelphia newspaper).  Other straws

in   the   decisional  wind   blow  in   differing  directions.11

                    

     11In examining  the  case  law,  we have  considered     and
rejected    appellant's suggested analogy to a line of fraudulent
misrepresentation  cases.   See,  e.g., Ealing  Corp. v.  Harrods
                                                                 

                                15

Compare, e.g., Berrett v. Life Ins. Co. of the Southwest, 623  F.
                                                        

Supp.  946,  950   n.3  (D.  Utah  1985)   (declining  to  assert

jurisdiction, discussing McBreen, and  treating the fact that the
                                

defendant  did not  initiate  the contact  as dispositive)  with,
                                                                

e.g.,  Cole v. Doe, 258  N.W.2d 165, 168  (Mich. 1977) (upholding
                  

jurisdiction, without  any  discussion  of  initiation,  where  a

source, able to foresee republication in the forum state, made an

allegedly  defamatory  remark in  a  telephone  interview with  a

nationally syndicated columnist).   

          Having found  the case  law  in a  muddle, we  consider

appellant's invitation that  we adopt the classic  analogy for an

out-of-state libel:  the gunman firing across a state line.   See
                                                                 

Buckley v. New York Post Corp., 373 F.2d 175, 179 (2d Cir. 1967).
                              

In  a situation like  this one,  the analogy  is imperfect.   The

person who responds to  a journalist's question in the  course of

an interview initiated by  the latter is less like  a traditional

sniper and  more like a  person who has  been transported  to the

border  and eased  into position behind  a rifle aimed  at a pre-

selected  target.   While  such a  person  retains the  choice of

pulling the trigger, or not, he cannot fairly be equated  with an

individual who has achieved the same position through a series of

                    

Ltd., 790 F.2d 978, 982 (1st Cir. 1986); Murphy, 460 F.2d at 663-
                                               
64;  Johnson v. Witkowski, 573 N.E.2d 513, 523 (Mass. App. 1991);
                         
Burtner  v. Burnham,  430 N.E.2d  1233, 1236  (Mass. App.  1982).
                   
These cases are unhelpful  because a business relationship almost
invariably entails  some degree of initiative  and forethought on
the  part of the persons involved, and, therefore, initiation and
foreseeability are necessarily present.

                                16

personalized  affirmative choices reaffirmed at every significant

juncture.12

          The conclusion that we draw from this line of reasoning

is that appellant  has made  only the most  marginal of  showings

that Alioto purposefully availed himself of an opportunity to act

in  Massachusetts.   And  the weakness  of  this showing  assumes

decretory  significance  when  we  step  back  and  evaluate  the

fairness  of  asserting  jurisdiction  in  the  totality  of  the

circumstances. 

          3.  The Gestalt Factors.  In constitutional terms,  the
          3.  The Gestalt Factors.
                                 

jurisdictional inquiry is  not a mechanical exercise.   The Court

has  long insisted that concepts of  reasonableness must inform a

properly   performed  minimum  contacts  analysis.    See,  e.g.,
                                                                

Woodson,  444 U.S. at 292;  International Shoe, 326  U.S. at 320.
                                              

"This  means that,  even  where  purposefully generated  contacts

exist, courts must consider a panoply of other factors which bear

upon the fairness of subjecting a nonresident to the authority of

a foreign  tribunal."  Pleasant St.  I, 960 F.2d  at 1088; accord
                                                                 

Donatelli,  893 F.2d at 464-65.  The Supreme Court has identified
         

five  such  factors,  namely,   (1)  the  defendant's  burden  of

appearing,  (2) the  forum state's  interest in  adjudicating the

dispute, (3) the plaintiff's interest in obtaining convenient and

effective relief, (4) the judicial system's interest in obtaining

                    

     12Withal,  we  recognize  that  a  person  speaking  on  the
telephone is free to refrain from making defamatory statements in
the same way that a person standing beside a telephone is free to
refrain from calling a  reporter.  In terms of  moral philosophy,
both persons, by acting, commit acts of will.

                                17

the  most effective  resolution of the  controversy, and  (5) the

common  interests  of  all sovereigns  in  promoting  substantive

social policies.   See  Burger King,  471 U.S. at  477.   We have
                                   

labelled this group of considerations the "gestalt factors."  See
                                                                 

Pleasant St. I, 960 F.2d at 1088; Donatelli, 893 F.2d at 465.
                                           

          The  gestalt factors  are not  ends in  themselves, but

they are, collectively, a means of  assisting courts in achieving

substantial  justice.   In  very close  cases,  they may  tip the

constitutional  balance.   See Burger  King, 471  U.S. at  477-78
                                           

(explaining that "minimum requirements inherent in the concept of

'fair play and substantial justice' may defeat the reasonableness

of jurisdiction even if the defendant has purposefully engaged in

forum  activities") (citation  omitted).   For example,  in Asahi
                                                                 

Metal  Indus. Co. v. Superior  Court, 480 U.S.  102 (1987), eight
                                    

Justices   agreed   that    asserting   jurisdiction   would   be

unreasonable, although  the question  of minimum contacts  was so

close that it  divided the  Court.  See  id. at 114-15.   In  the
                                            

estimation   of  at  least   four  Justices,   considerations  of

reasonableness  sufficed  to defeat  jurisdiction notwithstanding

that the defendant purposefully  engaged in activities within the

forum.    See id.  at 116-17  (separate  opinion of  Brennan, J.,
                 

joined by White,  Marshall, &amp; Blackmun,  JJ.).  Justice  Stevens,

although not  joining  Justice Brennan's  concurrence,  expressed

satisfaction with the theory underlying this conclusion.  See id.
                                                                 

at 121-22 (separate opinion of Stevens, J.). 

          This  aspect  of  the  jurisdictional  inquiry  remains

                                18

something  of an unknown quantity.  The gestalt factors have been

applied by the Court  only once (in Asahi); beyond  mere mention,
                                         

they  have  been discussed  on rare  occasions  by the  courts of

appeals,  see, e.g., Gould v.  Krakatau Steel, 957  F.2d 573, 576
                                             

(8th  Cir.), cert. denied, 113  S. Ct. 304  (1992); Theunissen v.
                                                              

Matthews, 935 F.2d 1454,  1460-61 (6th Cir. 1991), and  they have
        

been  used  regularly to  defeat jurisdiction  only in  the Ninth

Circuit, see  Mona  A. Lee,  Burger  King's Bifurcated  Test  for
                                                                 

Personal  Jurisdiction, 66  Temp. L.  Rev. 945  (1993) (surveying
                      

circuits).   That circuit  has  concluded that  dismissal may  be

appropriate  on grounds of  reasonableness even if considerations

of  relatedness  or  purposefulness,  taken  in  isolation, could

support the  exercise of  jurisdiction.   See Fields v.  Sedgwick
                                                                 

Associated  Risks,  Ltd.,  796  F.2d  299,  302 (9th  Cir.  1986)
                        

(finding the  assertion of  jurisdiction unreasonable  though the

showing of purposefulness was  "certainly of a nature  that would

support jurisdiction"); see  also FDIC  v. British-American  Ins.
                                                                 

Co., 828 F.2d  1439, 1442  (9th Cir. 1987)  (collecting cases  in
   

which  courts  denied  jurisdiction  for  lack  of reasonableness

without    resolving    questions    anent     relatedness    and

purposefulness); Decker Coal Co.  v. Commonwealth Edison Co., 805
                                                            

F.2d 834,  840 (9th  Cir. 1986)  (limning Ninth Circuit's  multi-

factor reasonableness test).

          We agree in principle with the Ninth Circuit.  We hold,

therefore,  that  the  Due  Process  Clause  bars  a  court  from

asserting jurisdiction over the person of a defendant if doing so

                                19

would be fundamentally unfair.  In this context, gauging fairness

requires  an   assessment  of  reasonableness  for,   in  certain

circumstances, unreasonableness can  trump a minimally sufficient

showing of  relatedness and purposefulness.   We think, moreover,

that the reasonableness prong of the due process inquiry evokes a

sliding scale:  the  weaker the plaintiff's showing on  the first

two  prongs (relatedness  and purposeful  availment), the  less a

defendant  need  show  in  terms of  unreasonableness  to  defeat

jurisdiction.  The reverse is equally true:  an especially strong

showing  of  reasonableness may  serve  to  fortify a  borderline

showing of  relatedness and  purposefulness.  See  Donatelli, 893
                                                            

F.2d at 465.  It is  against this backdrop, then, that we proceed

to sift the gestalt factors.13

          a.   The Burden  of Appearance.   The burden associated
          a.   The Burden  of Appearance.
                                        

with forcing a California  resident to appear in a  Massachusetts

court  is  onerous  in  terms  of  distance,  and  there  are  no

mitigating  factors to  cushion that  burdensomeness here.   This

burden, and its inevitable concomitant, great  inconvenience, are

entitled to substantial weight in calibrating the  jurisdictional

scales.   Indeed, the Court  has stated that  this element, alone

                    

     13The approach  that we endorse today  differs slightly from
that of the Ninth Circuit, which has crafted its own version of a
sliding scale approach.   The Ninth Circuit's  methodology, as we
understand it,  incorporates the  element of  purposefulness into
the  third  prong  of the  inquiry,  and  weighs  it against  the
remaining considerations of reasonableness.   See Core-Vent Corp.
                                                                 
v. Nobel  Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993); see also
                                                                 
Insurance Co. of North Am. v. Marina Salina  Cruz, 649 F.2d 1266,
                                                 
1271  (9th Cir.  1981)  ("The smaller  the element  of purposeful
interjection,  the less is jurisdiction to be anticipated and the
less reasonable is its exercise.").

                                20

among  the  gestalt  factors,  is  "always  a  primary  concern."

Woodson, 444 U.S. at 292.
       

          These are not empty words, for  most  of the cases that

have  been dismissed on grounds  of unreasonableness are cases in

which the defendant's center of gravity, be it place of residence

or place of business, was located at an appreciable distance from

the forum.  See, e.g., Asahi, 480 U.S. at 114 (Japanese defendant
                            

sued  in California); Core-Vent Corp. v. Novel Indus. AB, 11 F.3d
                                                        

1482,  1488-90  (9th  Cir.   1993)  (Swedish  defendant  sued  in

California;  defamation action);  Amoco Egypt  Oil Co.  v. Leonis
                                                                 

Navigation  Co.,  1  F.3d  848, 852  (9th  Cir.  1993)  (Filipino
               

defendant  sued   in  Washington);  Casualty   Assur.  Risk  Ins.
                                                                 

Brokerage  Co. v.  Dillon,  976 F.2d  596,  600 (9th  Cir.  1992)
                         

(District of Columbia defendant sued in Guam; defamation action);

Fields, 796 F.2d at  302 (British defendant sued in  California).
      

The effect of distance  on jurisdictional outcomes is graphically

illustrated by the two cases in which a defendant's contacts with

the forum  were most  strikingly reminiscent  of those  that have

been  assembled  here.  Compare  National Ass'n  of  Real  Estate
                                                                 

Appraisers, 1989  U.S. Dist.  LEXIS at  *11 (declining  to assert
          

jurisdiction over  Rhode Island defendant  who would have  had to

defend  defamation suit in California) with Dion, 566 F. Supp. at
                                                

1387 (asserting  jurisdiction over  New York defendant  forced to

defend defamation suit in Pennsylvania).

          Furthermore,   as   the  court   below   observed,  the

circumstances   surrounding   this   case   suggest    that   the

                                21

inconvenience  to the defendant may  not be coincidental.   It is

the rare libel case in which both the newspaper and the reporter,

though amenable to process, are relegated to the sidelines at the

behest  of an avowedly defamed  plaintiff.  It  is rarer still to

discover that such a plaintiff has intentionally selected a forum

in which  punitive damages are unavailable,  bypassing other fora

in which such damages might be awarded.

          Such considerations are important.  One reason that the

factor of  inconvenience to the  defendant weighs heavily  in the

jurisdictional balance  is that  it provides a  mechanism through

which  courts may guard against harassment.  It is firmly settled

that  a "plaintiff may not,  by choice of  an inconvenient forum,

`vex,' `harass,'  or `oppress'  the defendant by  inflicting upon

him expense or trouble not  necessary to his own right to  pursue

his remedy."  Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)
                                       

(citations  omitted).   And  although  vexatious  suits are  more

frequently dismissed under the doctrine of forum non conveniens, 
                                                               

we believe that the reasonableness analysis required by the third

prong  of the due process inquiry must  be in service to the same

ends. 

          b.   Interest of  the Forum.   The  forum  state has  a
          b.   Interest of  the Forum.
                                     

demonstrable  interest in  exercising jurisdiction  over one  who

causes tortious injury within its borders.  See Keeton v. Hustler
                                                                 

Magazine, Inc.,  465 U.S.  770, 776  (1984).   Though we deem  it
              

inappropriate  to   correlate   the  strength   or  weakness   of

appellant's case on the  merits with the strength or  weakness of

                                22

the forum state's interest  in this regard,  we think it is  both

appropriate  and  useful  to  note  two  special  considerations.

First, the  Commonwealth's interest in the  litigation sub judice
                                                                 

is  arguably   lessened   by  the   doubts  surrounding   whether

defendant's act can be said to  have been committed in the forum,

see supra  p.  7.    Second, if  appellant  in  fact  filed  suit
         

primarily to  retaliate against  Alioto's role in  the California

litigation rather than  to right  an independent wrong    and  as

previously  mentioned there  are some  clues in  the record  that

could lead  to such  a  deduction    the Commonwealth's  interest

would be much diminished.   Cf., e.g., Asahi, 480 U.S.  at 114-15
                                            

(minimizing  forum state's  interest  in protecting  its citizens

from  tortious  injury because  a  dispute  was "primarily  about

indemnification rather than safety standards").  Mindful of these

special considerations, we conclude  that the forum has a  milder

than usual interest in the further prosecution of T-NY's suit.

          c.  The Plaintiff's  Convenience.  Given the sparseness
          c.  The Plaintiff's  Convenience.
                                          

of the record, it is difficult  to say whether trying the case in

Massachusetts would be more  convenient for plaintiff than trying

it in  California.  Certain key witnesses  on the issue of injury

may be in Massachusetts,  including the reporter.  But  other key

witnesses may well  be residents  of California.   While we  must

accord plaintiff's  choice  of forum  a  degree of  deference  in

respect to the issue  of its own convenience, see  Piper Aircraft
                                                                 

Co.  v. Reyno, 454 U.S.  235, 241 (1981),  the plaintiff's actual
                                                                 

convenience seems to be at best a makeweight in this situation.

                                23

          d.   The Administration  of  Justice.   Apart from  the
          d.   The Administration  of  Justice.
                                              

possibility that  plaintiff's action might be  thought vexatious,

see  supra Part II(B)(3)(a), the interest  of the judicial system
          

in the effective administration of justice does not appear to cut

in either direction.

          e.  Pertinent Policy Arguments.  One substantive social
          e.  Pertinent Policy Arguments.
                                        

policy that  seems to counsel against  exercising jurisdiction is

the widely  shared  interest in  preserving citizens' willingness

to  talk openly  with the press.   Forcing  an individual  to fly

cross-country on the strength of one answered telephone call from

a journalist likely would  tend to dry up sources  of information

and thereby impede the press in the due performance of its proper

function.  Nonetheless,  the Court has  shied away from  allowing

First  Amendments  concerns  to  enter  into  the  jurisdictional

analysis.  See Keeton, 465 U.S. at 780 n.12; Calder v. Jones, 465
                                                            

U.S. 783, 790 (1984).   Although it might be  argued convincingly

that  the  jurisdictional  calculus  ought  to  produce  somewhat

different results in defamation actions filed  against reporters'

sources than in actions filed against the journalists responsible

for  republication of a source's remark, as in Calder, or against
                                                     

the media corporation itself, as in Keeton, these precedents give
                                          

us  pause.  Consequently, we  place no weight  on First Amendment

values for purposes of this appeal.

          4.  Tallying the  Results.  We begin the final phase of
          4.  Tallying the  Results.
                                   

our  analysis by retracing our steps.   At the first stage of the

due  process inquiry,  appellant  succeeded in  showing that  its

                                24

putative cause  of action arose from, or  related to, defendant's

contacts with the forum.  See supra Part II(B)(1).  At the second
                                   

stage of the inquiry,  appellant succeeded in showing defendant's

purposeful  availment.   See  supra  Part II(B)(2).    On neither
                                   

prong,  however,  did  appellant  demonstrate more  than  a  bare

minimum;  we found  its  claim of  relatedness  enfeebled by  the

attenuated causal link between the allegedly defamatory utterance

and  the harm allegedly suffered, and its claim of purposefulness

enfeebled  by the fact that the defendant did not initiate either

the telephone call or the resultant interview.

          The frailty  of appellant's  showings on the  first two

furcula  of the due process  inquiry required us  to consider the

gestalt factors and  assess the reasonableness of an assertion of

jurisdiction  by a Massachusetts court.  Doing so, see supra Part
                                                            

II(C),  we found that, while many of those factors possess little

significance for purposes of this case, there is one factor   the

defendant's convenience   that stands out from the crowd.   It is

this factor that consistently has  been declared deserving of the

greatest weight in kindred cases.  And it is this factor that may

serve as an amulet to ward off vexatiousness and harassment.   We

now conclude, considering the totality of the circumstances, that

defendant's burden of  appearance is so  onerous that it  renders

the  exercise of  in  personam jurisdiction  unreasonable.   This
                              

conclusion   carries   the  day.      A   distant  court   cannot

constitutionally  exercise in personam  jurisdiction over  a non-
                                      

resident  defendant at the behest  of a plaintiff  who can muster

                                25

only the most tenuous  showings of relatedness and purposefulness

if, as in this case, forcing the defendant to defend in the forum

would be plainly unreasonable.

          This is as it  should be, for, at bottom,  the dictates

of due process  demand that  a court's assertion  of in  personam
                                                                 

jurisdiction   comport  with  considerations  of  fair  play  and

substantial justice.  See, e.g., International  Shoe, 326 U.S. at
                                                    

320.   To  ensure  achievement of  this  goal, the  machinery  of

jurisdictional analysis is designed  to refine judges' intuitions

about the relevant equities, not to eliminate those equities from

the decisional process.  Relatedness and purposeful availment are

cogs in  this analytic machinery.   The gestalt  factors comprise

the  machinery's fail-safe device; they  are not a necessary part

of the machinery's day-to-day operation, but if, in the course of

a particularized  analysis, the gears mesh  imperfectly because a

given  set of facts does not fit  into any of the standard molds,

the gestalt factors take hold.  

          This case exemplifies the proper operation of the fail-

safe  device.  It hardly seems fair,  on the strength of a single

remark uttered  in the course  of a single  unsolicited telephone

call  from   a  Massachusetts-based   journalist,  to  compel   a

California resident to defend  a tort suit in a court  3000 miles

away.   The unfairness is heightened because the link between the

remark and the injury has been attenuated by republication in the

popular  press.   Our  commitment  to fair  play  and substantial

justice  precludes us from subjecting  a person to  the rigors of

                                26

long-distance litigation on the basis of so gossamer a showing of

causation and voluntariness.

          We  need go no  further.   When all  is said  and done,

courts must assert jurisdiction, or abjure its assertion, with an

eye  toward  fundamental  fairness.   Thus,  here,  the  district

court's dismissal of the  instant action for want of  in personam
                                                                 

jurisdiction must be

Affirmed.
        

                                27
