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Shield law ruling unique in nation

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In balancing free speech and a person’s protection against defamation, the Indiana Court of Appeals held that anonymous online commenters to media websites are not “sources” protected by the state’s shield law if they aren’t part of the newsgathering process.

In the court’s Feb. 21 decision, Judge Nancy Vaidik wrote that an anonymous commenter is not a source as envisioned by Indiana’s Shield Law, and this holding is consistent with the state Legislature’s intent.
 

vaidik-nancy.jpg Vaidik

When it comes to determining when anonymous posters’ identities should be revealed because of potentially defamatory statements, the judges adopted a standard that’s increasingly being used by courts across the country.

“Our court struck a profound balance on the limits of this kind of activity, and said protecting online commenters with the shield law is a bad idea and can injure journalism,” said Indianapolis attorney Kevin Betz, who represented Jeffrey and Cynthia Miller in their defamation suit.

The Millers sued multiple parties who made remarks alleging Jeffrey Miller, the former president of Junior Achievement of Central Indiana, misused money. A story published in The Indianapolis Star about how Junior Achievement had missed payments with contracts on a building project and misappropriated grant money led to an anonymous comment by “DownWithTheColts” on The Star’s website. Miller sought to add several anonymous online commenters from various media outlets to his suit.

A Marion Superior judge in February 2011 ordered the news outlets to turn over information to identify commenters. The Star refused, arguing it was protected by the First Amendment, the Indiana Constitution and the state shield law from having to comply with the discovery requests.

The Court of Appeals reversed 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, et al., No. 49A02-1103-PL-234, and held that Indiana’s Shield Law does not protect “DownWithTheColts” because the commenter is not a reporter, editor or owner of The Indianapolis Star and was not a source of information for the story because the comments were posted after the story was written.

Betz said he believes this appeal is unique because it’s the first appellate ruling he knows of nationally that has ruled on this issue of shield law protection for anonymous news comments.

Although the court rejected The Star’s shield law argument, the panel suggested that shield law protection could be warranted where commenters were considered sources and part of the newsgathering process.

Other jurisdictions

Indiana has joined a growing number of states that have adopted a heightened standard for courts to use to determine whether an anonymous online comment rises to the level of defamation. Most are using some variety of two standards: the Dendrite test, arising from a 2001 New Jersey case that involved anonymous commenters on a Yahoo! message board; or the Cahill test, which comes from a 2005 Delaware Supreme Court case that involved anonymous comments on a blog and modified the earlier Dendrite test.

Examples of the use of Dendrite and Cahill tests are scattered throughout case briefs and U.S. courts at the state and federal levels.

Tennessee and Maryland courts have applied Dendrite’s multistep analysis to determine if the plaintiffs were entitled to identification of an anonymous blogger. The Maryland appellate court concluded that too low a threshold “would inhibit the use of the Internet as a marketplace of ideas,” but that too high a threshold would “undermine personal accountability and the search for truth by requiring claimants to essentially prove their case before even knowing who the commentator was.”

The Western District of Washington has also adopted a Dendrite-style test, requiring a plaintiff to produce prima facie evidence to support all of the elements of a defamation claim and using the standard to quash a subpoena seeking the identity of an Internet site’s owner and operator that wrote about a marketing company.

Not every court examining anonymous comment cases have relied on Dendrite or Cahill. An Illinois appellate court refused to adopt either standard in 2010. The court rejected the idea that the plaintiff’s claim should be tested by a summary judgment standard rather than a motion to dismiss standard, reasoning that Illinois is a fact-pleading jurisdiction that requires a legally and factually sufficient complaint. The court further held that once the plaintiff has set forth a prima facie case, he has made a valid claim for damages and has a right to expect a remedy.

The 9th Circuit Court of Appeals has held the type of appropriate test will vary depending on the type of speech. The appellate court last year denied a mandamus petition that would have directed the District of Idaho to vacate its order to unmask anonymous Internet posters after the lower court had considered several possible tests and applied Cahill.

In its ruling, the appellate court found the lower court didn’t inquire into the speakers’ identities and clarify the nature of speech, but still adopted the two-part test derived from Cahill. The 9th Circuit noted that applying the “rigorous” Cahill standard is “understandable” in cases involving political speech. But in the context of less-protected commercial speech, “Cahill’s bar extends too far” and the District Court’s two-part test was only appropriate, if ever, in a case concerning free speech.

In looking at which heightened standard to use for Indiana, Vaidik wrote that the Dendrite test is the most appropriate balance between protecting anonymous speech and preventing defamatory speech because of its flexibility. But because of the requirement to prove actual malice, the judges adopted a modified Dendrite test – similar to what the Arizona Court of Appeals did in 2007. The modified standard 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 isn’t required.

Applying that standard to Miller’s case, the court found that the statement made by “DownWithTheColts” is defamatory per se, and that Miller now needs to provide proof that the statement is false in order for his defamation claim to move forward.

In adopting that modified test, the appellate court allowed trial judges to use the summary judgment standard and weigh factors such as the type of speech, the speaker’s expectation of privacy, the potential consequence of a discovery order, the need for the speaker’s identity, and the availability of other discovery methods.

“With this decision, Indiana joins the growing consensus in state and federal courts around the country that the Dendrite balancing test is the best way to reconcile the free speech rights of anonymous Internet speakers against the interest of plaintiffs who really have been wronged by online speech in pursuing genuine legal claims,” said Paul Alan Levy, an attorney with nonprofit advocacy organization Public Citizen in Washington, D.C., an amicus party opposing the disclosure of the commenter’s identity. “Requiring proof and a showing of genuine need for the speaker’s identity can help prevent powerful interests from discouraging criticism by the threat of baseless litigation.”

Washington, D.C., attorney Charles Tobin, who represented an amicus party made up of five media outlets, called the Indiana ruling First Amendment friendly.

“Courts have had to make policy decisions on whether we should promote growth of the Internet,” he said. “Some believe it’s a breeding ground for obnoxious speech, but if the First Amendment stands for anything, it’s that one man’s vulgarity is another man’s lyric. We may not like the message and may really hate the messenger, but we have to allow for maximum speech and the methods it is expressed.”•
 

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  • chilling effect on free speech and the net
    Very contrary to the trend of public opinion. Legislators should step in here and force defamation law to come in step with the times. Too often used by the rich and powerful to chill speech. Political correctness another such trend. So much for free inquiry and the marketplace of ideas.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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