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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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