Are internet forums analogous to the soapbox in the town square — the technological equivalent of Speakers’ Corner in London’s Hyde Park? Or are internet forums the 21st century version of the Wild West where reputations are shot down with impunity?
The eternal clash between free expression and reputational interests played out in an oral argument this week before a panel of three judges of the Indiana Court of Appeals. Judges Darden, Friedlander and Vaidik actively questioned advocates from both sides in The Indianapolis Star v. Jeffrey M. Miller, et al., Case No. 49A02-1103-PL-234. (The case is described in earlier posts to this blog.)
The legal issues debated during oral argument include:
1) Whether the absolute privilege created in Indiana’s Journalist Shield Law covers the identity of an anonymous commenter to a news story published on the online version of the Indianapolis Star? The statute is necessarily broad and does not specifically define or limit “sources” within the scope of the privilege. Much of the debate centered upon the scope of the privilege created by the statute. My two cents: the news is not static; new sources can and do step forward in response to an initial news story and lead to follow-up stories. The means of communication used by such “sources” (e.g., reaching out to an editor or reporter through the internet, rather than by phone or through the mail) should not affect the availability of protection for that source under the statute.
2) If the Shield Law does not apply, what legal standard should the Court adopt to protect anonymous speech and prevent abuses of discovery, while at the same time making discovery tools available to defamation plaintiffs with legitimate claims and a clear need for the information being sought? Amicus Public Citizen argued for the standard under Dendrite International v. Doe, No. A-2774-00T3, 775 A.2d 776, N.J. App. Div. (July 11, 2001), a five-part test requiring, among other things, notice to the anonymous commenter, a basic evidentiary showing of defamation and a balancing of the equities by a trial court.
3) As argued by the Millers (the defamation plaintiffs), is there any constitutional protection at all for speech they claim is defamatory per se? Their fallback position was that Dendrite goes too far in requiring evidence of defamation and that testing the plaintiff’s allegations under a cursory motion to dismiss standard should be sufficient to protect anonymous speech rights.
4) Finally, in an alternative raised during the Judges’ questioning, should the Court look to existing Indiana precedent such as In re Subpoena Duces Tecum to Stearns v. Zulka, 489 N.E.2d 146 (Ind. Ct. App. 1986)? Zulka established a qualified First Amendment privilege for determining when a litigant may compel a nonparty media organization to produce unpublished or unbroadcast material (in Zulka, unpublished photographs of the scene of an auto accident). The Zulka test requires the requesting litigant to show the requested material is highly relevant to the litigation, there is a compelling need for the information and that efforts to obtain the information from non-media sources have been unsuccessful.
A link to the video of the oral argument is posted below. Yours truly is representing amicus curiae, Public Citizen, in support of the Indianapolis Star’s position, and can be seen in the video at counsel’s table.