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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. 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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