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Order compelling Star to name online commenter stayed after arguments

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The Indianapolis Star won’t have to divulge the identity of an online commenter pending further order of the Indiana Court of Appeals, which heard arguments in a defamation case on Tuesday.

A panel of the court scheduled and heard arguments with dispatch because a trial court order compelled the Star to identify an anonymous online commenter by Nov. 16. The court issued a stay of that order that day and scheduled today’s arguments in Jeffrey M. Miller, et al. v. Junior Achievement, et al., 49A02-1211-PL-898.

At the center of the hearing is whether the Star must reveal the identity of a commenter whose screen name on Indystar.com was DownWithTheColts.

Barnes & Thornburg partner Jan Carroll argued for the Star that the newspaper wasn’t a party to the suit, and that a judge’s order requiring that it divulge a user’s name was a final judgment regarding its involvement in the case.   
 
“Once the bell is rung, it can’t be unrung,” she said. She argued that evidence at the trial court suggested that Miller wasn’t harmed by the comments and that there were larger issues at stake.

“Here we have an important constitutional issue,” Carroll said. “We are here because the Star is in the First Amendment business” and has an obligation and interest to preserve anonymous speech.

Miller’s attorney, Betz & Blevins partner Kevin Betz, argued that the Star was attempting to carve out legal paths to appeals that didn’t comport with rules and that following its strategy would “open up endless appeals.”

Betz said the Star had lost immunity from the Shield Law, that evidence presented at the trial court did establish a presumption of defamation, and that the Star’s appeal was untimely.

On the nature of DownWithTheColts’ online comments, he said, “It’s illegal speech that we want to chill.”

Judges Elaine Brown, Rudolph R. Pyle III and Presiding Judge Edward Najam focused their questions on appellate procedure and how the Star should be considered in applying party and nonparty rules.

Najam said at the close of arguments that the Nov. 16 order staying the trial court order compelling the Star to identify the commenter will continue pending further order of the court.

Miller, former CEO of Junior Achievement of Indiana, sued multiple parties for defamation and sought to add people who made anonymous comments on news organization websites that ran stories about Miller and Junior Achievement. 

The Court of Appeals in February reversed Marion Superior Judge S.K. Reid, who issued an order in 2011 that the news outlets must identify people who posted comments on their websites. The Star appealed whether it had to provide Miller information to help him identify an anonymous commenter. The appellate court ordered the trial court to apply a modified version of the Dendrite test, which comes from New Jersey, under both the federal and state constitutions to determine if Miller satisfied the requirements for obtaining the commenter’s identity. 

The trial court again ordered the newspaper to disclose the commenter’s identity in October.

 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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