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IBA: Unanimity On Anonymity: COA Tests Anonymous Speech

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By Steven Badger, Bose McKinney & Evans LLP
 

badger-steven-mug.jpg Badger

Media lawyers and litigators who frequently handle defamation cases have new guidance from the Indiana Court of Appeals on whether and when a litigant can compel a nonparty media organization or Internet website to disclose the source of allegedly defamatory statements posted anonymously online.

In re Indiana Newspapers, Inc., ___ N.E.2d ___, No. 49A02-1103-PL-234 (Feb. 21, 2012), is a case of first impression in Indiana. The appeal stemmed from a subpoena issued to the Indianapolis Star on behalf of Jeffrey and Cynthia Miller, plaintiffs in a defamation action. Jeffrey Miller is a former president and CEO of Junior Achievement of Central Indiana. Controversy at JA spilled into the local news in 2010 when a major project started during Mr. Miller’s tenure was suspended due to charges of financial mismanagement against him.

Several online readers of a related Indianapolis Star article posted comments critical of Mr. Miller, including one under the pseudonym “DownWithTheColts” stating:

“This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the ELEF [a supporting organization] board. The ‘missing’ money can be found in their bank accounts.”

The Millers sent a subpoena to the Indianapolis Star seeking the identity of “DownWithTheColts.” The Millers claimed they would be unable to seek redress against “DownWithTheColts” without the person’s identity. (The Communications Decency Act immunizes the Indianapolis Star from liability for comments posted by readers.) Although the Indianapolis Star objected on constitutional grounds and under the Journalists’ Shield Law, the Marion Superior Court nevertheless compelled compliance with the subpoena.

The unanimous 33-page decision written by Judge Vaidik starts by observing the proliferation of online comments posted to news media and social media websites. The opinion is well-reasoned and draws on a growing body of research on the subject of anonymous Internet comments.

The Court first rejected application of the Indiana Shield Law which grants journalists an absolute privilege against compelled disclosure of “the source of any information.” I.C. 34-46-4-2. The Court considered legislative intent and public policy and interpreted “source” as a “term of art meaning a person, record, document, or event that gives information to a reporter [or editor] in order to help write or decide to write a story.” Op. at 21. The Court held the Shield Law inapplicable because no evidence was presented that the Indianapolis Star’s news or editorial staffs ever evaluated, “interpreted” or “used the comment by ‘DownWithTheColts’ in any way.” Op. at 24.

Nevertheless, citing the First Amendment and Article I, Section 9 of the Indiana Constitution, the Court reversed the order compelling the Indianapolis Star to comply with the subpoena. The Court aimed “to strike a balance between protecting anonymous speech and preventing defamatory speech.” Op. at 3. To achieve that objective, the Court adopted a four-part test modified from the leading case, Dendrite International v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Under the Court’s modified Dendrite test, litigants seeking the identity of an anonymous Internet commenter must:

“(1) notify the anonymous poster via the website on which the comment was made that he is the subject of a subpoena or application for an order for disclosure and allow him time to oppose the application or subpoena; (2) identify the exact statements [believed] to be defamatory; and, (3) produce prima facie evidence to support every element of their cause of action before the disclosure of the commenter’s identity.” Op. at 29. The Court omitted actual malice from the elements of the prima facie showing. Under Indiana law, defamation plaintiffs must show actual malice when the speech at issue addresses a matter of public concern. The Court relieved the plaintiff of such burden because it would be impossible to show actual malice (i.e., knowing or reckless disregard of the truth) without the speaker’s identity. Op. at 32.

When litigants satisfy the above criteria, disclosure does not necessarily follow. Instead, the trial court must then “balance the defendant’s First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Op. at 29-30. The trial court should consider, among other factors, “the type of speech involved, the speaker’s expectation of privacy, the potential consequences of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party’s position, and the availability of other discovery methods.” Op. at 31.

The Court seems to have struck the balance it was looking for between expression and rights of redress for defamation. It remains to be seen whether either party will ask the Indiana Supreme Court to reset the scales.•

Steven Badger is a partner in the Bose McKinney & Evans Litigation Group and concentrates his practice on business litigation and appeals. He represents and advises media organizations, journalists and writers regarding the First Amendment, defamation law, newsgathering, access to public records and hearings, copyright law and other media law matters.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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