Shield law ruling unique in nation

In balancing free speech and a person’s protection against defamation, the Indiana Court of Appeals held that anonymous online commenters to media websites are not “sources” protected by the state’s shield law if they aren’t part of the newsgathering process.

In the court’s Feb. 21 decision, Judge Nancy Vaidik wrote that an anonymous commenter is not a source as envisioned by Indiana’s Shield Law, and this holding is consistent with the state Legislature’s intent.
 

Vaidik

When it comes to determining when anonymous posters’ identities should be revealed because of potentially defamatory statements, the judges adopted a standard that’s increasingly being used by courts across the country.

“Our court struck a profound balance on the limits of this kind of activity, and said protecting online commenters with the shield law is a bad idea and can injure journalism,” said Indianapolis attorney Kevin Betz, who represented Jeffrey and Cynthia Miller in their defamation suit.

The Millers sued multiple parties who made remarks alleging Jeffrey Miller, the former president of Junior Achievement of Central Indiana, misused money. A story published in The Indianapolis Star about how Junior Achievement had missed payments with contracts on a building project and misappropriated grant money led to an anonymous comment by “DownWithTheColts” on The Star’s website. Miller sought to add several anonymous online commenters from various media outlets to his suit.

A Marion Superior judge in February 2011 ordered the news outlets to turn over information to identify commenters. The Star refused, arguing it was protected by the First Amendment, the Indiana Constitution and the state shield law from having to comply with the discovery requests.

The Court of Appeals reversed in In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc, et al., No. 49A02-1103-PL-234, and held that Indiana’s Shield Law does not protect “DownWithTheColts” because the commenter is not a reporter, editor or owner of The Indianapolis Star and was not a source of information for the story because the comments were posted after the story was written.

Betz said he believes this appeal is unique because it’s the first appellate ruling he knows of nationally that has ruled on this issue of shield law protection for anonymous news comments.

Although the court rejected The Star’s shield law argument, the panel suggested that shield law protection could be warranted where commenters were considered sources and part of the newsgathering process.

Other jurisdictions

Indiana has joined a growing number of states that have adopted a heightened standard for courts to use to determine whether an anonymous online comment rises to the level of defamation. Most are using some variety of two standards: the Dendrite test, arising from a 2001 New Jersey case that involved anonymous commenters on a Yahoo! message board; or the Cahill test, which comes from a 2005 Delaware Supreme Court case that involved anonymous comments on a blog and modified the earlier Dendrite test.

Examples of the use of Dendrite and Cahill tests are scattered throughout case briefs and U.S. courts at the state and federal levels.

Tennessee and Maryland courts have applied Dendrite’s multistep analysis to determine if the plaintiffs were entitled to identification of an anonymous blogger. The Maryland appellate court concluded that too low a threshold “would inhibit the use of the Internet as a marketplace of ideas,” but that too high a threshold would “undermine personal accountability and the search for truth by requiring claimants to essentially prove their case before even knowing who the commentator was.”

The Western District of Washington has also adopted a Dendrite-style test, requiring a plaintiff to produce prima facie evidence to support all of the elements of a defamation claim and using the standard to quash a subpoena seeking the identity of an Internet site’s owner and operator that wrote about a marketing company.

Not every court examining anonymous comment cases have relied on Dendrite or Cahill. An Illinois appellate court refused to adopt either standard in 2010. The court rejected the idea that the plaintiff’s claim should be tested by a summary judgment standard rather than a motion to dismiss standard, reasoning that Illinois is a fact-pleading jurisdiction that requires a legally and factually sufficient complaint. The court further held that once the plaintiff has set forth a prima facie case, he has made a valid claim for damages and has a right to expect a remedy.

The 9th Circuit Court of Appeals has held the type of appropriate test will vary depending on the type of speech. The appellate court last year denied a mandamus petition that would have directed the District of Idaho to vacate its order to unmask anonymous Internet posters after the lower court had considered several possible tests and applied Cahill.

In its ruling, the appellate court found the lower court didn’t inquire into the speakers’ identities and clarify the nature of speech, but still adopted the two-part test derived from Cahill. The 9th Circuit noted that applying the “rigorous” Cahill standard is “understandable” in cases involving political speech. But in the context of less-protected commercial speech, “Cahill’s bar extends too far” and the District Court’s two-part test was only appropriate, if ever, in a case concerning free speech.

In looking at which heightened standard to use for Indiana, Vaidik wrote that the Dendrite test is the most appropriate balance between protecting anonymous speech and preventing defamatory speech because of its flexibility. But because of the requirement to prove actual malice, the judges adopted a modified Dendrite test – similar to what the Arizona Court of Appeals did in 2007. The modified standard requires the plaintiff to produce prima facie evidence to support only those elements of his or her cause of action that are not dependent on the commenter’s identity. Prima facie evidence of actual malice isn’t required.

Applying that standard to Miller’s case, the court found that the statement made by “DownWithTheColts” is defamatory per se, and that Miller now needs to provide proof that the statement is false in order for his defamation claim to move forward.

In adopting that modified test, the appellate court allowed trial judges to use the summary judgment standard and weigh factors such as the type of speech, the speaker’s expectation of privacy, the potential consequence of a discovery order, the need for the speaker’s identity, and the availability of other discovery methods.

“With this decision, Indiana joins the growing consensus in state and federal courts around the country that the Dendrite balancing test is the best way to reconcile the free speech rights of anonymous Internet speakers against the interest of plaintiffs who really have been wronged by online speech in pursuing genuine legal claims,” said Paul Alan Levy, an attorney with nonprofit advocacy organization Public Citizen in Washington, D.C., an amicus party opposing the disclosure of the commenter’s identity. “Requiring proof and a showing of genuine need for the speaker’s identity can help prevent powerful interests from discouraging criticism by the threat of baseless litigation.”

Washington, D.C., attorney Charles Tobin, who represented an amicus party made up of five media outlets, called the Indiana ruling First Amendment friendly.

“Courts have had to make policy decisions on whether we should promote growth of the Internet,” he said. “Some believe it’s a breeding ground for obnoxious speech, but if the First Amendment stands for anything, it’s that one man’s vulgarity is another man’s lyric. We may not like the message and may really hate the messenger, but we have to allow for maximum speech and the methods it is expressed.”•