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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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