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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues