Monday, November 26, 2012

Is Identity of Anonymous Poster Protected From Disclosure? Indiana Appellate Court Issues Stay, Sets Hearing For Tuesday

The Indiana Court of Appeals has stayed a trial court order that the Indianapolis Star disclose information that would lead to the identity of anonymous posters in its online comments.  The Court has set a hearing on the issue for Tuesday, November 27.

The hearing can be viewed live online at

The stay and hearing are only the latest events in a long history arising out of comments made in the case of Miller v. Junior Achievement, et al.   Among the "et al" are the Indianapolis Star, Indianapolis Business Journal, and an unknown person using posting on the Star's website as "DownWithTheColts."

 (Note: if this poster is identified and the case goes to trial, his moniker will make for some interesting voir dire examination of the jury pool - half of whom may show up in Colts gear.)

At the center of the dispute are assertions made by “DownWithTheColts,” Jeffrey Miller, former Junior Achievement president, and his wife were responsible for missing Junior Achievement funds that money “can be found in their (the Millers) bank accounts.”

Marion County (Indianapolis) Superior Court Judge J.K. Reid ordered the Star to disclose the information requested by the plaintiffs (such as IP Address) which would likely lead to the identity of the person making the comment.  Last spring, in a 3-0 33-page opinion authored by long-time appellate Judge Nancy Vaidik, the Indiana Court of Appeals rejected that anonymous posters qualify for protection under Indiana's Shield Law.  However, the Court held that both the U.S. and Indiana Constitutions required a balancing test between the benefits of allowing anonymous speech and the harm from defamatory speech, which is not protected.  The Court of Appeals remanded the case for the trial court to consider that balancing test.

On remand, the trial court again ordered disclosure of the information about the anonymous poster.  The information was to be disclosed last week, but the Indiana  Court of Appeals issued a stay and set the hearing.

Indiana has a history of being very strongly supportive of protection to journalism and free speech.  It is only three states which require a showing of constitutional malice for matters involving private citizens if they become involved in matters of public interest.

It should be a fascinating argument to watch, and an interesting decision that may have implications in the world of electronic media far beyond the present case.

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