Extraordinary Stay Against Newspaper Publication Should Raise Concern

Posted on April 16, 2012 by

There has been little fall-out or commentary about a March 12, 2012 Order by the Indiana Court of Appeals temporarily halting the South Bend Tribune from publishing a news story about an instance of suspected child abuse and the response of the Indiana Department of Child Services to those reports. A panel of three well-respected appellate judges granted the Order unanimously, and although it was brief (barring publication on a Friday until argument could be heard the following Monday), the South Bend Tribune wisely pulled the story from publication to comply with the Court’s Order. The controversy was resolved only when Indiana Attorney General Greg Zoeller bravely stepped in and put a halt to the Department’s efforts to squash the paper from reporting on information the Department itself had released to the newspaper.

Why should journalists, lawyers and free-speech advocates still be concerned about government censorship, a.k.a. “prior restraints?” Since 1971 when the United States Supreme Court decided the so-called “Pentagon Papers” case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), there has been no doubt that injunctions against publication of the news are rarely, if ever, appropriate. The Pentagon Papers case famously involved the New York Times’ publication of material from classified Pentagon documents about the Vietnam War. By a 6-3 majority, the U.S. Supreme Court ruled that even national security interests were not sufficient to uphold an injunction stopping the publication of the news.

There is perhaps no greater threat to freedom than government regulation of the content of the news. Democracy simply cannot function effectively without well-informed public oversight and participation. One of the first things tyrants and dictators do when they seize power is take control of the news media. The Founders of our Republic wisely recognized the fundamental role the media plays in the democratic process.

So, again, why should anyone be concerned about a short, court-ordered delay in the publication of a South Bend Tribune news story about the government’s reaction to reports of child abuse? It is the principle at stake that matters the most. Even a short delay in publication disrupts the exercise of independent editorial judgment of publishers and editors. It is not any accident the news is called the “news,” as it can quickly become stale, and the public needs timely information for democracy to function.

In his concurring opinion in the Pentagon Papers case, Justice Douglas observed:

“The stays is these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment.”

403 U.S. at 724, 91 S. Ct. at 2146.

I certainly hope the Court of Appeals’ Order against the South Bend Tribune was an aberration and a sad episode that we won’t see repeated.  Please tell us what you think.

Posted in Appellate Court Indiana, Appellate Judge, Appellate Ruling, First Amendment, Free Speech, Uncategorized | Tagged , | Leave a comment

Indiana COA Upholds Rights of Internet Commenters to Remain Anonymous

Posted on February 27, 2012 by

In a case of first impression, the Indiana Court of Appeals held earlier this week that the identity of anonymous internet posters is protected under the First Amendment and Article I, Section 9 of the Indiana Constitution and should not be subject to subpoena unless the litigant requesting such identity meets a four-part test.  The case, The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234, was the subject of this blog when the appeal was initiated, on oral argument, and in light of related developments.  Here’s the link to the Court’s decision.

The opinion is well reasoned and well worth reading.  Here’s how it begins:

In keeping up with the proliferation of the internet and social media, news organizations allow readers to both read and comment on their stories online. While this practice facilitates discourse between readers and interaction with their online news products, it also opens the door to potentially objectionable material, as readers are allowed to post comments anonymously, hiding behind a pseudonym. This case addresses whether a non-party news organization can be compelled to disclose to a plaintiff who has filed a defamation lawsuit the identity of one such anonymous commenter. In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law, which provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment, the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” according to Indiana Code section 34-46-4-2. Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter’s identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.

The Court rejected the application of Indiana’s Journalist’s Shield Law.  In essence, the Court interpreted the word “source,” as used in the statute, to mean only news sources who provide “information that is then interpreted by the news organization.”  There was no evidence that the anonymous internet commenter, “DownWithTheColts,” ever provided any information to the Indianapolis Star that was used by the newspaper in connection with its news reporting function.

Under the modified Dendrite test adoted by the Court, litigants seeking disclosure of an anonymous internet commenter must:

“(1) notify the anonymous poster via the website on which the comment was made that he is the subject of a subpoena or application for an order for disclosure and allow him time to oppose the application or subpoena; (2) identify the exact statement [they] believe[] to be defamatory; and, (3) produce prima facie evidence to support every element of their cause of action before disclosure of the commenter’s identity.”

The one exception to the requirement of setting forth a prima facie case is that a plaintiff is excused from showing actual malice.  Actual malice must be shown as part of a prima facie case of defamation under Indiana law when the speech at issue addresses a matter of public concern.  The Court reasoned that unless the speaker’s identity is known, it would be virtually impossible to show actual malice.  (I would note that it is exceedingly difficult to prove actual malice, even when the writer’s identity is known.)

When litigants satisfy the above criteria, disclosure does not necessary follow.  Instead, the trial court must then “balance the defendant’s First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”  Factors that the trial court should consider as part of the balancing analysis include “the type of speech involved, the speaker’s expectation of privacy, the potential consequences of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party’s position, and the availability of other discovery methods.”

In re Indiana Newspapers will provide the standard in all future cases when a litigant seeks to pierce the anonymity of an internet poster, unless one of the parties to the appeal asks the Indiana Supreme Court to grant transfer.

Posted in Anonymous Speech, Defamation, First Amendment, Free Speech, Internet, Journalist's Shield | Tagged , , , , , , | Leave a comment

Indiana Appellate Civil Case Law Summary (November 2011)

Posted on February 16, 2012 by

Each issue of Res Gestae, the Journal of the Indiana State Bar Association, includes a summary of the recent civil case law decisions published by the Indiana Supreme Court and Indiana Court of Appeal.  For the latest issue written by Oni Harton and Curtis Jones, click here.

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Free speech over the Internet put to the test

Posted on February 16, 2012 by

As featured in The Indiana Lawyer this week in the commentary section. http://bit.ly/AuczZ8

There is nothing like free expression to test how much we truly value that freedom. Views expressed in a free and open exchange are sometimes ugly, mean-spirited or profane. When such expression is unleashed, it requires a deep and abiding commitment to the core value of free expression not to squelch it at its source.

Free expression in this country has withstood repeated assault during times of political upheaval. In a case well known to free speech advocates, Cohen v. California, the United States Supreme Court overturned a man’s conviction of disturbing the peace because he appeared in court wearing a jacket that displayed an obscenity (i.e., “F – - – the Draft”). Justice Harlan’s majority opinion famously observed: “Those in the Los Angeles courthouse [offended by the jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” 403 U.S. 15, 21 (1971).

In our online 21st century world, averting our eyes is more difficult to do as we are bombarded by tweets, text messages, blogs and email. The availability and efficiency of the Internet makes it a potent weapon. If “the pen is mightier than the sword,” the tweet is thermo-nuclear. Yet, the technological development of the Internet should not change our society’s commitment to free expression.

Reactionaries among us are pushing back on what they view as expression run amuck. These folks compare the Internet to a lawless “Wild West” in which reputations can be shot with virtual impunity. Free speech advocates, on the other hand, liken the Internet to a super political pamphlet offering free world-wide publication for citizens wishing to express their views on public issues. These competing views of the Internet are being argued in full force in courtrooms around the country, including Indiana.

In Oregon, a federal jury recently awarded a lawyer a $2.5 million defamation verdict against self-styled “investigatory blogger” Crystal Cox. Cox authored a number of highly critical blogs about attorney Kevin Padrick and his investment firm, Obsidian Finance, using such unimaginative names as obsidianfinancesucks.com. Cox’s more lucid blog entries accused Padrick of misconduct while acting as bankruptcy trustee of a failed financial company. Full of name-calling and venom, not to mention misspellings and bad grammar, Cox’s blog would have presented a challenge for even the most persuasive First Amendment lawyer to defend. (Cox defended herself without legal representation.)

As outrageous and unsupported as Cox’s blogs may be, the verdict is troubling because of the strict liability standard the court applied. The court held Cox liable for defamation without regard to whether she knew or should have known what she wrote was false. Well-established First Amendment protection bars liability against a media defendant without some showing of fault or negligence. An even higher burden of proof, knowing falsity or reckless disregard, applies when the plaintiff is a public official or public figure or when punitive damages are imposed. The federal District Court judge concluded, however, that Cox was not entitled to such First Amendment protections because she was not a member of the news media. The court noted that Cox failed to show she had any journalistic training or followed any “journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

Closer to home, the Indiana Court of Appeals will soon decide whether and under what circumstances a plaintiff in a defamation lawsuit may require a non-party media organization to identify the author of anonymous comments to news stories published on the organization’s website. A Marion Superior Court ordered The Indianapolis Star to comply with a subpoena demanding the newspaper identify who commented anonymously to a news story on the newspaper’s website. The plaintiffs, Jeffrey and Cynthia Miller, allege that Jeffrey Miller’s former employer, Junior Achievement, Junior Achievement’s current president (Miller’s successor) and others defamed him by accusing him of financial mismanagement (or worse) in connection with certain Junior Achievement projects. The Indianapolis Star covered the controversy and its online publication of its news stories attracted a number of anonymous, online comments, some of which are the subject of the Millers’ lawsuit.

The appeal focuses on one particular commenter who’s been identified only by the pseudonym, “DownWithTheColts.” That commenter wrote: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the ELEF board. The ‘missing’ money can be found in their bank accounts.”

This anonymous post was mild in comparison to those posted by known commenters who the Millers are already suing. Nevertheless, the Millers have forced the issue by arguing that The Indianapolis Star (which is immune from suit under the Communications Decency Act) should not be permitted to withhold the identity of “DownWithTheColts” and deny the Millers the opportunity to add another name to the caption of their lawsuit.

Neither “DownWithTheColts” nor “investigatory blogger” Cox will ever be confused with Publius, the penname some of our Founding Fathers used to publish the Federalist Papers, or other great American political writers. But expressive freedom cannot be conditioned on content or viewpoint. It is not such a distant slip down the slope to censorship commonly seen in other countries, even other democracies. France, for example, recently made it a crime punishable for up to a year in prison to deny that the Ottoman Empire committed genocide against Armenians during World War I.

It is unfortunate that some act irresponsibly in expressing themselves on the Internet. However, our First Amendment rights are too fragile and too precious to be watered down or jeopardized because of the irresponsible actions of a small minority of the populace. Free expression is certainly not free of costs. There is a price we must pay, but in my view, the benefits of living in a free society are well worth it.

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Indiana Supreme Court Rules on Insurance Coverage

Posted on February 7, 2012 by

A divided Indiana Supreme Court looked to the Articles of Incorporation of the Indiana Youth Soccer (“IYSA”) to find that no insurance coverage was owed when one of its member teams, the Carmel Commotion, was involved in an automobile accident during an out-of-state trip.  Youth soccer players were injured in the accident when the team was going to a “team building” white-water rafting trip while in Colorado for a tournament.

In Haag v Castro, three justices on the Indiana Supreme Court interpreted the IYSA’s bylaws to mean that the IYSA was “in the business of” (i) promoting, (ii) regulating, and (iii) conducting, but not in competing.  Since the Carmel Commotion were traveling in conjunction with competing in a tournament when they were involved in an automobile accident, the Court held that the IYSA’s commercial lines policy did not apply.

Justice David did not participate in this decision.  Justice Dickson dissented disagreeing with the majority’s “narrow characterization of the ‘business’ of the IYSA” and arguing that the insurance contract was ambiguous.

Haag serves as a warning to all sports and other youth-related organizations to double-check their existing bylaws and insurance policies to ensure that there are no potential gaps in coverage.

“It’s funnier if you imagine John McEnroe screaming, ‘Are you serious? You can’t be serious! You CANNOT be serious!’”

Posted in Appeals Attorneys, Appellate Court Indiana, Appellate Judge, Coverage Disputes, Indiana Courts, Insurance Appeals | Tagged , | Leave a comment

Seventh Circuit Refuses to Expand CERCLA

Posted on February 3, 2012 by

The Seventh Circuit recently affirmed the District Court’s grant of a Motion to Dismiss in Emergency Services Billing Corp., Inc. v. Allstate.  In ESBC, the Court refused to expand CERCLA beyond its intended scope at the expense of automobile and homeowners’ insurers.  ESBC was running a business model predicated on charging insureds and insurers thousands of dollars for post-accident environmental cleanups, based on the contention that CERCLA applies and pre-empts state laws (such as Indiana’s) capping recovery costs for Fire Departments responding to accidents and fires.

Posted in Appeals Attorneys, Appellate Brief, Bose McKinney & Evans, Coverage Defenses, Coverage Disputes, Insurance Appeals | Tagged , , | Leave a comment

Courts Rebuff Policyholders Who Seek Defense of Antitrust Class Actions

Posted on January 3, 2012 by

Recently-filed lawsuits in California and Georgia follow a trend of CGL policyholders demanding defenses to antitrust conspiracy claims under the theory that the antitrust class actions seek damages for “personal and advertising injury.” The same playbook, however, has not succeeded for policyholders in the Seventh and Eleventh Circuits. Thus, what might have seemed like a colorable claim now looks more like a hail mary pass.

The United States Court of Appeals for the Seventh Circuit recently joined the Eleventh Circuit in holding that class action lawsuits for price-fixing conspiracies do not fall within CGL coverage for advertising injury. The Seventh Circuit decided the issue in Rose Acre Farms, Inc. v. Columbia Casualty Co. and National Fire Ins. Co. of Hartford, No. 11-1599 (November 1, 2011).

The policyholder, Rose Acre, faced consolidated class actions in Pennsylvania alleging Rose Acre had engaged in a conspiracy to fix the price of eggs in violation of Section 1 of the Sherman Act. Rose Acre tendered its defense to its insurers and argued that the lawsuits sought damages for “personal and advertising injury” within the scope of the CGL policies. The insurers declined to defend Rose Acre, and Rose Acre then sued the carriers in the United States District Court for the Southern District of Indiana.

Chief Judge Posner, writing for the unanimous panel, made quick work of Rose Acre’s arguments. The Court reasoned that the class actions complained only about illegal price-fixing, not Rose Acre’s advertising. In addition, there is the rather inconvenient obstacle for Rose Acre that price-fixing is an intentional criminal act for which a clear policy exclusion applies.

As the Seventh Circuit noted, the Eleventh Circuit Court of Appeals reached the same result in a case decided just a month earlier, Trailer Bridge, Inc v. Illinois National Ins. Co., 657 F.3d 1135 (Sept. 19 2011). The Trailer Bridge and Rose Acre decisions, however, have not stopped the continuing trend in which policyholders accused of antitrust conspiracies seek defenses under CGL policies.

The Georgia case is Collegiate Licensing Co. v. American Casualty Co., et. al, No. 1:11-cv-03432-TWT (N.D. Ga.).  The California case is National Union Fire Insurance Co. v. Electronic Arts, Inc., et al., No. 3:11-cv-04897 (N.D. Cal.).  Both involve the defense of antitrust claims relating to the use of likenesses of college athletes.

Posted in Advertising Injury, Class Actions, Coverage Defenses, Intentional Midconduct | Tagged , , , | Leave a comment