A Marion County judge recently ordered The Indianapolis Star and Indianapolis Business Journal to turn over information that would allow a former chief executive of Junior Achievement of Central Indiana to discover who anonymously posted comments about him so he can sue the posters for libel.
The Star argued unsuccessfully that the identity of the posters should be kept confidential under the protection of Indiana’s reporter shield law.
I don’t have a problem with Judge S.K. Reid’s denial of that argument.
If state legislators, who often are the targets of vitriolic comments posted anonymously on Indiana newspaper websites, thought Indiana’s Reporter’s Privilege Law was being used to give a free pass for libel there would be legislation filed in a heartbeat to change the law.
Changes might weaken what is now a strong law protecting reporters from being compelled to reveal sources of information.
But I do believe Indiana courts need to establish judicial procedure for unmasking anonymous posters.
The precedent needs to balance the right of individuals to protect their reputations without damaging the long-established principles that support anonymous speech.
Indiana courts would do well to emulate the practice New Jersey established for similar instances.
In a 2001 case before the Superior Court of New Jersey (Dendrite International Inc. v. John Doe), the appellate court laid out a procedure that requires a plaintiff seeking the identity of an anonymous poster through a defamation case to first satisfy the court that the statements made are actionable under the law and not just offending to the plaintiff.
New Jersey courts also require the plaintiff to attempt to notify anonymous posters that they are facing a lawsuit so they can hire attorneys to fight for their right to remain anonymous.
The notification attempt in New Jersey can be satisfied by a posting on the website where the offending post appeared.
We shouldn’t forget that anonymous speech gave us the Federalist Papers, essays written to encourage the ratification of the U.S. Constitution as a replacement for the Articles of Confederation as the framework for our governmental system.
In a Practicing Law Institute piece written by attorneys Ashley Kissinger and Katharine Larsen, they note that “anonymous commentary has been credited with identifying solutions for political, social and cultural challenges; promoting unconventional ideas; and catalyzing community development and transformation.”
The lack of pre-screening of the legitimacy of a lawsuit or notification to an anonymous poster in Indiana will serve to chill the robust discourse now found on many websites, including those of Indiana newspapers.
Hoosiers may think twice about exercising their First Amendment right anonymously if they may be identified under the pretext of a libel action.
Currently lawsuits can be filed over comments that are not libelous but merely offending.
The plaintiff’s sole goal may be to identify the speaker. The plaintiff is then free to use the information to get even in other ways with the offending poster.
Indiana law also puts newspapers in the ticklish position of weighing the First Amendment ramifications of not fighting a subpoena to identify a poster or expending precious funds to support a legal principle even when the comments themselves may be indefensible under libel law standards.
Whether any of media outlets currently targeted decide to appeal Judge Reid’s orders, which would offer the appellate court an opportunity to impose standards for anonymous-speech cases, remains to be seen.
Stephen Key is executive director and general counsel of HSPA.
