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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. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  2. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

  3. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  4. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  5. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

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