FARGO: Internet resurrects old free-speech questions

March 17, 2012

Anthony FargoFaced with several options, the Indiana Court of Appeals chose the “most speech-protective” one in weighing the right to speak anonymously online versus the right to protect one’s reputation. Its late February decision will probably not be the last word on the subject, however.

The court’s decision came in a case involving The Indianapolis Star and a commenter to a story on its website known only as “DownWithTheColts.” In a nutshell, DWTC wrote something unflattering about someone mentioned in the story. That person wanted to know DWTC’s real identity so he could sue him for libel and sought a court order to require the Star to identify him. (I’m assuming it’s a “him,” and that it wasn’t Peyton Manning.)

The Star argued that DWTC’s identity was protected by the state shield law, which gives reporters a limited right to conceal confidential sources. The newspaper also argued, alternatively, that DWTC was protected by a common-law privilege that has been developed and tweaked by courts around the country over the last decade.

I should disclose that a law review article I co-wrote was cited several times in the Court of Appeals decision. Also, it should be noted that the IBJ and WRTV-TV Channel 6 also were ordered to reveal the identities of people who commented on similar stories on their websites, and they complied with the orders. Nothing I write here is meant to pass judgment on those decisions.

In a one-paragraph decision last March, a Marion Circuit Court judge rejected the Star’s positions without stating why, leading to the appeal.

The Star argued that DWTC was like a “source” and therefore should be protected as one. The Court of Appeals found this to be a stretch. It defined a “source” as someone who gives information to a journalist to help that journalist “write or decide to write a story.” There was no evidence the Star used DWTC’s comment to investigate or write a story.

The Star had better luck with the argument that DownWithTheColts was protected by the First Amendment.

Anonymous speech has a long history in the United States, going back to pre-Revolutionary War times. The U.S. Supreme Court has said that publishing anonymously also is a First Amendment right, though not an absolute one.

The Internet, however, has provided a platform to speak anonymously to broad audiences, and that has emboldened some to say things they probably shouldn’t have said. The Supreme Court hasn’t weighed in on how to balance the constitutional right to speak anonymously online and the right to protect your reputation. Complicating matters is the fact that some libel suits are frivolous. Also, federal law makes Internet service providers largely immune from legal liability for their users’ actions.

The competing issues have led various state appellate courts to develop balancing tests to use when libel plaintiffs seek user identities from reluctant ISPs.

The Indiana court chose a slightly modified version of what is known as the Dendrite test, after a New Jersey case called Dendrite International Inc. v. Doe. The Dendrite test requires plaintiffs, before being allowed to coerce an ISP into identifying a user, to notify the commenter that her identity is being sought through the website where the offending comment was posted, identify the statements the plaintiff believes were defamatory, and produce prima facie evidence to support every element of the libel claim. Finally, the test requires courts to weigh the plaintiff’s need for the identity versus the right to speak anonymously.

The Indiana court modified the test so that plaintiffs will not have to prove every element of a libel case in order to proceed. Indiana law requires all libel plaintiffs to prove actual malice—that the defendant knew what she said was false or that she spoke with “careless and reckless disregard” for the truth. Often, you can only prove that if you know the defendant’s identity.

The case goes back to the circuit court to apply the test to the facts of the case, so the Court of Appeals wasn’t the end of the line.•


Fargo is an Indiana University journalism professor and member of the Indiana Coalition for Open Government. Send comments on this column to ibjedit@ibj.com.


Recent Articles by Anthony L. Fargo / Special to IBJ

Comments powered by Disqus