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.

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.

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.

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!’”

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.

The eternal clash between free expression and reputational interests played out in an oral argument this week before a panel of three judges of the Indiana Court of Appeals.  Judges Darden, Friedlander and Vaidik actively questioned advocates from both sides in The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234.  (The case is described in earlier posts to this blog.)

The legal issues debated during oral argument include:

1)  Whether the absolute privilege created in Indiana’s Journalist Shield Law covers the identity of an anonymous commenter to a news story published on the online version of the Indianapolis Star?  The statute is necessarily broad and does not specifically define or limit ”sources” within the scope of the privilege.  Much of the debate centered upon the scope of the privilege created by the statute.  My two cents:  the news is not static; new sources can and do step forward in response to an initial news story and lead to follow-up stories.  The means of communication used by such “sources” (e.g., reaching out to an editor or reporter through the internet, rather than by phone or through the mail) should not affect the availability of protection for that source under the statute.

2)  If the Shield Law does not apply, what legal standard should the Court adopt to protect anonymous speech and prevent abuses of discovery, while at the same time making discovery tools available to defamation plaintiffs with legitimate claims and a clear need for the information being sought?  Amicus Public Citizen argued for the standard under Dendrite International v. Doe, No. A-2774-00T3,  775 A.2d 776, N.J. App. Div. (July 11, 2001), a five-part test requiring, among other things, notice to the anonymous commenter, a basic evidentiary showing of defamation and a balancing of the equities by a trial court.

3)  As argued by the Millers (the defamation plaintiffs), is there any constitutional protection at all for speech they claim is defamatory per se?  Their fallback position was that Dendrite goes too far in requiring evidence of defamation and that testing the plaintiff’s allegations under a cursory motion to dismiss standard should be sufficient to protect anonymous speech rights.

4)  Finally, in an alternative raised during the Judges’ questioning, should the Court look to existing Indiana precedent such as In re Subpoena Duces Tecum to Stearns v. Zulka, 489 N.E.2d 146 (Ind. Ct. App. 1986)?  Zulka established a qualified First Amendment privilege for determining when a litigant may compel a nonparty media organization to produce unpublished or unbroadcast material (in Zulka, unpublished photographs of the scene of an auto accident).  The Zulka test requires the requesting litgant to show the requested material is highly relevant to the litigation, there is a compelling need for the information and that efforts to obtain the information from non-media sources have been unsuccessful.

A link to the video of the oral argument is posted below.  Yours truly is representing amicus curiae, Public Citizen, in support of the Indianapolis Star’s position, and can be seen in the video at counsel’s table.

https://mycourts.in.gov/arguments/default.aspx?view=detail

Indiana Appellate Rule 14 provides, “A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary . . .”  Ind. App. R. 14(B)(1)(a).  The Indiana Court of Appeals in Nationwide Ins. Co. v. Parmer, No. 41A01-1008-CT-377, ___ N.E.2d ___, 2011 WL 5927424 (Nov. 29, 2011), recognized that just as Indiana Trial Rule 53.4 does not toll the deadline to file a notice of appeal, Indiana Trial Rule 53.4 also does not toll the thirty day deadline under Indiana Appellate Rule 14(B)(1)(a) to request certification by the trial court of an order for interlocutory appeal. 

Furthermore, Indiana Appellate Rule 14 provides that a court could grant relief from failure to comply with the thirty day deadline with a belated motion filed with good cause.  Ind. App. R. 14(B)(1)(a).  However, the Parmer court found that the record on appeal never addressed whether the untimely motion requesting certification satisfied Indiana Appellate Rule 14(B)(1)(a)’s good cause standard.  As a result, the Court of Appeals could not find that the appellant certified the trial court’s decision for interlocutory review, and the Court of Appeals lacked jurisdiction over that particular trial court decision.

http://www.in.gov/judiciary/opinions/pdf/11291103par.pdf

I’ve previously written in this blog about The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234.   The novel question is whether and under what circumstances a litigant can compel a non-party newspaper to disclose the identity of an internet user who posted anonymous comments to a news story published in the newspaper’s online edition.  Courts in other jurisdictions that have addressed the question have followed a multi-part standard adopted or modified from Dendrite International v. Doe, No. A-2774-00T3,  775 A.2d 776, N.J. App. Div. (July 11, 2001).

The Indianapolis Star is appealing a Marion County Superior Court order requiring the newspaper to comply with the plaintiffs’ subpoena demanding the identity of an unnamed person who posted under the pseudonym, “DownWithTheColts.”  In the underlying lawsuit, Plaintiffs Jeffrey and Cynthia Miller allege that Mr. 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.

In opposing the subpoena, the Indianapolis Star has invoked the Journalists’ Shield Law, limitations on third-party discovery, and constitutional protections for anonymous speech under both the First Amendment and Article I, Section 9 of the Indiana Constitution.  Courts have recognized that anonymity does have value, and those who comment on public controversies often have legitimate reasons for remaining anonymous.