The Indiana Court of Appeals on Tuesday ordered a Marion County judge to reconsider whether The Indianapolis Star must identify an online user who posted an anonymous comment that now is part of a defamation lawsuit.

Jeffrey M. Miller, former CEO of Junior Achievement of Central Indiana, sued JA; its current CEO, Jennifer Burk; and Central Indiana Community Foundation and its president, Brian Payne, for defamation in March 2010 after IBJ and other media outlets ran stories about JA and Miller. He later added as defendants about a dozen people who made anonymous comments about the coverage on news organization websites.

After a Star article on JA facing questions about an audit tied to funding for a building project, anonymous poster “DownWithTheColts” wrote, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the [Foundation] board. The 'missing' money can be found in their bank accounts.”

Marion Superior Judge S.K. Reid last year ordered IBJ, the Star and WTRV-TV Channel 6 to identify people who posted comments on their websites; only the Star refused to comply. At issue is whether the Star has to provide Miller information to help him identify “DownWithTheColts.”

The appellate judges decided that the heart of the case is whether “DownWithTheColts” is “the source of any information” provided to a news outlet under Indiana’s Shield Law. The judges compared the online comment forum to that of a bulletin board outside of the Star’s office building that asks for anyone to tack an announcement.

The newspaper did not use the comment by “DownWithTheColts” to write its story or as a lead for another story, the panel said. And an anonymous commenter is not a source as envisioned by Indiana’s Shield Law, wrote Judge Nancy Vaidik.

The judges then reviewed anonymous speech rights under the state and federal constitutions. They found that the statement made by “DownWithTheColts” is defamatory, but Miller has not yet proven that it is false, which Vaidik wrote is necessary for his defamation claim to move forward. And it will be impossible for Miller to prove actual malice under Indiana law without the identity of “DownWithTheColts.”

“While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters,” she wrote.

The judges ordered Reid to apply the so-called Dendrite test, which comes from a New Jersey case involving anonymous commenters on a Yahoo! message board, saying it draws the most appropriate balance between protecting anonymous speech and preventing defamatory speech. But because of Indiana's requirement to prove actual malice, the judges modified the test to require Miller to produce prima facie evidence to support only those elements of his cause that are not dependent on the commenter’s identity. Preliminary evidence of actual malice is not required.

The COA sent the case back to the trial court to apply the modified version of the Dendrite test under both the federal and state constitutions to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”