By Steve Key
The Indiana Court of Appeals heard arguments last week about how the law should balance between the First Amendment right of anonymous speech and the right of a defamed person to protect his or her reputation from libel.
The three-judge panel was presented the question when The Indianapolis Star appealed a trial court order to turn over identifying information about an anonymous poster on its website.
Jeff Miller, a former chief executive officer of Junior Achievement, has filed suit against more than a dozen individuals and entities for comments made about him in connection with his involvement in a Junior Achievement of Central Indiana building project that went awry.
The Hoosier State Press Association Foundation helped fund an amicus brief in support of The Indianapolis Star.
The brief asks the court to create a process requiring a plaintiff to clear some hurdles before a judge would require that an anonymous poster be identified.
The HSPA Foundation believes a plaintiff should show there is a legitimate libel question before a judge would consider any action revealing the anonymous poster.
Otherwise, a person unhappy about what had been written about him or her anonymously could seek to unmask the commenter without any evidence that the posts were libelous.
Judges Ezra Friedlander, Nancy Vaidik and Carr Darden heard the arguments in the appeal on Dec. 12.
The Star’s attorney, Jan Carroll, an attorney with Barnes & Thornburg of Indianapolis, argued that the trial court order should be overturned because the posting on the newspaper website should fall under the state’s reporters’ privilege statute (also known as reporters’ shield law).
The three judges immediately jumped on that argument. They asked Carroll what she felt the legislature intended about protecting a source and whether she believed the shield law should protect against all defamation actions.
Carroll remained steadfast that privilege is absolute.
That argument is one I’m not comfortable with from a practical standpoint.
As an absolute, it would allow a person to maliciously attack someone on a newspaper website without any recourse for the victim.
Even if the appellate court agreed with the premise, I fear the state legislature would address the issue. If that happens, Indiana could end up with a much weaker shield law than it now has.
Representing the amicus brief, Paul Levy, an attorney with Public Citizen of Washington, D.C., argued that the concern was with the process a court should use when asked to reveal the identity of an anonymous speaker.
Levy advocated what is known as the Dendrite test, which would require a libel plaintiff to prove that he or she would likely prevail in showing that comments were libelous. There is also a notice provision to ensure the anonymous poster knows someone is suing to identify him or her.
Kevin Betz, an Indianapolis attorney representing Miller, argued that regular discovery rules – a less strenuous test than Dendrite – should apply.
He said it would be onerous to require the plaintiff to clear a summary judgment hurdle prior to discovery.
Vaidik responded that a lesser hurdle could have a chilling effect on speech and questioned Betz about why a good-faith test would not be appropriate.
At the end of the hour-long hearing, my take was that the appellate panel will not agree to the proposition that the reporters’ shield law should apply to all comments posted on newspaper websites.
However, I believe the judges will set out some sort of test for the validity of a libel case when it involves an effort to pierce the anonymity of a speaker protected by the First Amendment.
The question is what test will they choose?
The answer hopefully will take Indiana newspapers out of the quandary of either spending thousands of dollars to protect the First Amendment rights of anonymous posters or turning the information over to plaintiffs without regard to the legitimacy of the case.
Steve Key is executive director and general counsel for HSPA.