by Paul Alan Levy
In Miller v. Junior Achievement, decided today, the Indiana Court of Appeals today joined the national consensus approach to deciding whether to allow plaintiffs who sue anonymous Internet speakers to use the judicial subpoena power to compel the identification of those speakers. Public Citizen filed amicus briefs opposing the plaintiff’s motion to dismiss the appeal for lack of appellate jurisdiction and supporting the First Amendment grounds for the appeal from an order enforcing a subpoena to identify the anonymous commenter, and I participated in the oral argument.
Acting in a case involving an anonymous reader of the Indianapolis Star who commented on a news story about the former head of the local chapter of Junior Achievement, the court embraced the Dendrite approach that requires a plaintiff to notify the speaker and give her a chance to defend her anonymity, plead a viable claim that specified words are actionable, and present evidence establishing a prima facie case on the elements of the claim, and then show that the balance of interests favors disclosure. The court decided that the comment implicitly accused the plaintiff of embezzling funds, and hence was defamatory on its face, but reversed a trial court decision enforcing a subpoena to identify the poster because the plaintiff had produced no evidence that anything said about him was false. The trial judge was ordered to apply the Dendrite standard, as spelled out in the Court’s opinion, to see whether plaintiff can meet the standard.
At the same time, the Court of Appeals rejected the argument advanced by the Indianapolis Star that the commenter was a “source” protected against discovery by the Indiana Shield Law, at least in the circumstances of the case. Some states have applied their shield laws to protect anonymous commenters on media companies’ web sites, but the court decided that the Indiana law does not extend that far, partly because of language of the statute, but partly as well for policy reasons which, the court said, encouraged this reading of the law’s somewhat ambiguous language. Although the term “source” is not defined by the statute, the general meaning of the term is someone upon whom a journalist relies in preparing a story, and because there was no evidence that the Star had used the comment in any way in furthering its own reporting, the commenter could not be regarded as a source whose identity was protected from discovery by the shield law. The court emphasized the narrowness of its holding in that regard — on page 21 of the opinion, it said, “for this reason alone, we determine that the anonymous commenter was not a source as envisioned by our Shield Law.” In this respect, the court’s opinion suggests that the shield law’s protection might extend to anonymous posters on newspaper web sites in some circumstances.
But the policy concerns on which the court also relied do not appear to be so limited. For one thing, the court noted that once the Indiana shield law applies, the protection against discovery is absolute, and the court noted that, because the Indianapolis Star would be immune from suit over the comment under the federal Communications Decency Act, 47 U.S.C. § 230, applying the shield law would have the untoward result that nobody could be held liable for an anonymous comment no matter how false and how damaging. Interestingly, there were no previous Indiana state court decisions addressing the CDA, so this decision also advances free speech principles by adding Indiana to the list of states that have agreed with the consensus approach to section 230.
The court also expressed concern that applying the shield law in these circumstances could weaken legislative support for shield principles, and cited the opinions of some journalists that protecting anonymous commenters is “a bad idea.” Indeed, while the case was pending the Indianapolis Star and other papers in the Gannett chain changed their policies regarding comments on news stories to require commenters to link their registration to their Facebook accounts.
A complete set of the briefs on both sides in the case can be found on the Cyberslapp web site.