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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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