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COA rules on anonymous online commenter case

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In a case of first impression, the Indiana Court of Appeals has ordered the trial court apply a modified test based on a New Jersey case to determine whether The Indianapolis Star must identify an online user whose comment is part of a defamation lawsuit.

Jeffrey Miller, former CEO of Junior Achievement of Indiana, sued multiple parties for defamation, and sought to add people who made anonymous comments on news organization websites that ran stories about Miller and Junior Achievement. The Star wrote an article concerning Junior Achievement facing questions and an audit about a building project, to which an anonymous poster, “DownWithTheColts,” wrote, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the [Foundation] board. The “missing” money can be found in their bank accounts.”

Marion Superior Judge S.K. Reid issued an order in 2011 to the Indianapolis Business Journal, a sister publication of Indiana Lawyer; The Star; and WTRV-TV Channel 6 that the news outlets must identify people who posted comments on their websites. At issue is whether The Star has to provide Miller information to help him identify “DownWithTheColts.” The Star is the only news organization that did not comply with the discovery requests.

In In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al.,
No. 49A02-1103-PL-234, the judges decided the heart of the case is whether “DownWithTheColts” is “the source of any information” under Indiana’s Shield Law. The judges compared the online comment forum to that of a bulletin board outside of The Star’s office building that asks for anyone to tack an announcement. The newspaper did not use the comment by “DownWithTheColts” to write its story or as a lead for another story. An anonymous commenter is not a source as envisioned by Indiana’s Shield Law, and this holding is consistent with the state’s Legislature’s intent, wrote Judge Nancy Vaidik.

The appellate court then turned to the anonymous speech rights under the state and federal constitutions. They found that the statement made by “DownWithTheColts” is defamatory per se, and while Miller has alleged that the statement made was false, he hasn’t yet provided any proof of this, which is necessary for his defamation claim to move forward, wrote Vaidik. And, it will be impossible for him to make a showing of actual malice under Indiana law without the identity of “DownWithTheColts.”

“While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters,” she wrote.

The judges decided the Dendrite test, which comes from a New Jersey case involving anonymous commenters on a Yahoo! message board, draws the most appropriate balance between protecting anonymous speech and preventing defamatory speech. But because of the requirement to prove actual malice here, the judges adopted a modified Dendrite test which requires the plaintiff to produce prima facie evidence to support only those elements of his or her cause of action that are not dependent on the commenter’s identity. Prima facie evidence of actual malice is not required.

The COA sent the case back to the trial court to apply the modified version of the Dendrite test under both the federal and state constitutions to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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