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.