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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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