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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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