Amish Litigants Forced to Honor Agreement

In a consolidated appeal from various complaints by property owners against a sewer district, the Court of Appeal’s in Wagler v. West Boggs Sewer District, Inc., held that the sewer district was allowed to compel Members of an Old Order Amish to connect to its sewer system, pursuant to Indiana Code section 8-1-2-125(d).  Importantly, the resistors had entered into an agreed entry, which required them to connect onto the sewer line.  Only after they made this agreement did they cite religious objections to use of this public utility.

Posted in Appeals Attorneys, Appellate Court Indiana, Appellate Ruling, Bose McKinney & Evans, First Amendment, Free Speech, Indiana Courts | Tagged , , , , | Leave a comment

Indiana Appellate Civil Case Law Summary (May 2012)

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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U.S. Supreme Court Strikes Down FCC’s Indecency Determinations Against Fox And ABC

George Carlin’s comedy routine about the seven words that can’t be said on television is (to me at least) as funny today as it was decades ago, and, indeed, is still relevant. Carlin has a gift for humorous social commentary. Here’s how he introduces his seven-dirty words schtick:

I love words. I thank you for hearing my words. I want to tell you something about words that I uh, I think is important. I I say, they’re my work, they’re my play, they’re my passion. Words are all we have really.

We have thoughts, but thoughts are fluid. You know, [humming]. And, then we assign a word to a thought, [clicks tongue]. And we’re stuck with that word for that thought. So be careful with words. I like to think, yeah, the same words that hurt can heal. It’s a matter of how you pick them.

There are some people that aren’t into all the words. There are some people who would have you not use certain words. Yeah, there are 400,000 words in the English language, and there are seven of them that you can’t say on television. What a ratio that is. 399,993 to seven. They must really be bad. They’d have to be outrageous, to be separated from a group that large. All of you over here, you seven. Bad words. That’s what they told us they were, remember? ‘That’s a bad word.’ ‘Awwww.’ There are no bad words. Bad thoughts. Bad Intentions.

The FCC begs to differ. For decades, the FCC has enforced decency standards on public airwaves between the hours of 6 AM and 10 PM under federal law, 18 U.S.C. Section 1464. The FCC has promulgated regulations defining what constitutes indecent material, including profanity and nudity.

George Carlin does figure into this story because his “seven dirty words” routine was at issue in the seminal United States Supreme Court opinion in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Supreme Court upheld the FCC’s ruling that Carlin’s routine was indecent against constitutional challenge.

Fast forward to 2012. Just last week, the Supreme Court overturned the FCC’s enforcement actions against the Fox and ABC broadcasting networks for broadcasting indecent material in violation of federal law. The opinion in FCC v. Fox Television Stations, Inc., et al. is available here. The case addressed FCC enforcement action stemming from Fox’s broadcast of the Billboard Music Awards in 2002 and 2003. Cher, an award recipient in 2002, and Nicole Richie, a presenter in 2003, apparently didn’t get the memo, or chose to disregard it, and spontaneously used the “king” of the seven forbidden words, the f-bomb. Unlike George Carlin fans everywhere, the FCC was not amused and cited Fox for violating decency standards, although it imposed no fine.

The case against ABC involved a brief segment in a 2003 episode of NYPD Blue that showed the nude buttocks of an adult female character for about seven seconds and an even shorter view of the side of her breast. Unlike with Fox, the FCC imposed a forfeiture against ABC totaling nearly $1.24 million.

In a rare 8-0 unanimous decision (Justice Sotomayer did not participate) in the habitually fractured US Supreme Court, the Court invalidated the FCC’s actions against Fox and ABC as a violation of constitutional Due Process. The Court examined the history of FCC regulation of indecency, specifically its earlier announced guidelines making “whether the material dwelled on or repeated at length the offending description or depiction” a key consideration in determining indecency. Opinion, p. 13. The Court reasoned:

[The FCC’s] regulatory history . . . makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of § 1464 as interpreted and enforced by the agency failed to provide a person of ordinary intelligence fair notice of what is prohibited. This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon sensitive areas of basic First Amendment freedoms.

Opinion, p. 13 (citations and quotations omitted).

The Court noted that its decision was based on the Due Process Clause, not the First Amendment. Nonetheless, the Court pointed out repeatedly that the void for vagueness doctrine must be rigorously applied when speech is involved lest ambiguity chill protected expression. Opinion, p. 12, 13.

So where does this leave the FCC’s new policy of fleeting, momentary and spontaneous indecency in future cases? You got it: up in the air. The Court’s opinion concludes thusly:

Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in . . . subsequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it.

Opinion, p. 17. In other words, stay tuned.

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Indiana Appellate Civil Case Law Summary (February 2012)

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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Extraordinary Stay Against Newspaper Publication Should Raise Concern

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

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.

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Indiana Appellate Civil Case Law Summary (November 2011)

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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