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Supreme Court vacates transfer in Star commenter case

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The Indianapolis Star has signaled an intent to comply with a court order to identify an anonymous online commenter whose remarks about a former Junior Achievement leader are part of a defamation lawsuit, according to an attorney representing the former executive.

The disclosure came days after the Indiana Supreme Court chose not to further review long-running litigation involving whether the newspaper must reveal the identity of the online commenter. The court’s decision to vacate transfer came one day after justices heard oral arguments.

Jan Carroll Carroll

Former Junior Achievement of Indiana CEO Jeffrey Miller has 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. Miller sued the The Star after it refused to provide identifying information about an anonymous online commenter he claims made comments that constitute defamation.

The Supreme Court issued an order Sept. 27 in Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852 (Ind. Ct. App. 2012), aff’d on reh’g (Ind. Ct. App. 2013). That order required The Star to provide identifying characteristics of a commenter who posted a comment on IndyStar.com under the screen name DownWithTheColts.

The court’s one-page order doesn’t explain why justices opted to vacate transfer, a 4-1 decision from which Justice Loretta Rush dissented.

Attorney Kevin Betz of Betz+Blevins represents Miller and said on Oct. 4 that The Star had responded to a letter seeking enforcement of the court order. Betz said The Star indicated in its response it was “working to comply” with the order. Betz+Blevins threatened to seek a contempt order against the newspaper if it didn’t comply with the court order.

Betz said the newspaper had provided some non-digital information, but he said, “We’re still waiting for full compliance from The Star as to the digital information, the electronic information that was ordered by the court and has gone through the appellate system twice.”

Attorneys for The Star did not respond to messages seeking comment, but after the court’s ruling, Barnes & Thornburg LLP partner Mark J. Crandley said The Star would consider its response to the ruling and is “going to look at every possible angle.”

“Obviously it’s a very complicated situation, and we’re going to have to look at what the denial of transfer means,” Crandley said. “Given the First Amendment implications, we definitely want to take a good hard look at what the options are.”

Barnes & Thornburg attorney Jan Carroll made The Star’s case during oral arguments that the First Amendment considerations merited the high court’s review, and that the speech of DownWithTheColts was precisely the kind that warrants protection.

“Nobody sues because Eddie Haskell says something nice about them,” Carroll said. She noted that the comments about Miller failed to pass a believability test, and there was a lack of evidence on a defamation claim because Miller had shown people continued to believe he was a man of integrity.

“There still has to be a showing of causation, and that people believed it,” Carroll said of the comment.  

Betz argued to the Supreme Court that the litigation had gone on far too long and The Star had been under court orders for more than a year to turn over identifying information about DownWithTheColts.

“Jeff Miller is a simple, proud man who for three years has fought for his constitutional right to repair his reputation,” Betz told the justices.

“This is not First Amendment protected speech,” he said. “This is vile, mean-spirited speech. … It was a concerted effort to smear Mr. Miller.”

Betz said in an interview the delay in identifying the commenter has “made it far more difficult to put all the pieces together in this defamation action that has alleged improper activity between many of the defendants, and that claim has survived summary judgment for several of the defendants.”

Betz said Miller’s defamation case is scheduled for trial Jan. 14, 2014, before Marion Superior Judge Michael Keele, who granted the order requiring The Star to identify DownWithTheColts.

Going forward, anonymous online comments will be less of a factor for The Star, which has since modified the comments section of its website so that users must now use a Facebook login.•

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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