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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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