Shielding anonymous commenters

Photo courtesy of Paul Levy

Paul Alan Levy is a lawyer at Public Citizen in Washington, D.C., which filed a friend-of-the-court brief in Miller v. Junior Achievement of Central Indiana.

The need to balance the recognized First Amendment right to speak anonymously with a remedy for those who are legitimately aggrieved by defamatory statements made by anonymous online speakers has led to the development of legal doctrines that aim to strike a compromise.

In February, Indiana became the most recent state to have a court adopt the so-called Dendrite test for determining when a defamation plaintiff may require a website to turn over the identity of an anonymous commenter. First developed by New Jersey Superior Court in Dendrite International v. Doe No. 3, the Indiana court called this test “the most speech-protective standard that has been articulated.”

The case, In re Indiana Newspapers, Inc. (Miller v. Junior Achievement of Central Indiana), presented an intersection of two legal rights to protect the anonymity of online commenters: state reporters’ shield laws and the First Amendment. It serves as a case study for how evolving practices in the newspaper business could be affected by the law.

The Junior Achievement controversy

The Miller case arose out of an anonymous comment posted to a story run on the website of The Indianapolis Star. The Star published an article in March 2010 about allegations of questionable financial practices at Junior Achievement, an Indiana non-profit organization. The Star’s article raised questions about Junior Achievement’s financial affairs, including questions about unaccounted for grant money and missed payments to contractors hired for a building project. The article noted that a funder was demanding an audit of Junior Achievement.

An anonymous commenter, writing under the nom de plume “DownWithTheColts,” posted the following comment: “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.”

Jeffrey Miller, former president and CEO of Junior Achievement, filed a complaint alleging that DownWithTheColts had defamed him. When the Star refused to identify DownWithTheColts, Miller asked the court to order the newspaper to reveal the anonymous commenter.

Attorneys for the Star moved to quash the subpoena. They argued that the identity of the commenter should be protected as a source under Indiana’s shield law. That law provides absolute protection for the identities of sources of information. They also argued that the court should adopt the Dendrite test for determining when, under the First Amendment, the shroud of anonymity may be lifted from an online speaker.

Indiana’s shield law is very broad, according to Jan Carroll, an Indianapolis media attorney who represented the Star. It provides an absolute privilege for “editorial and reportorial employee[s]” of newspapers, periodicals, press associations or wire services from disclosing “the source of any information.” But, the law does not define what constitutes a “source.”

Carroll argued that the anonymous commenter was a source under the shield law. Miller’s subpoena was “tailored literally” to what the shield law protects – the disclosure by an editorial employee of the source of some information, she said.

The court disagreed, holding that DownWithTheColts did not qualify as a “source,” and thus the Star could not use the shield law to prevent disclosure. The court reached this conclusion in part, Carroll said, by reference to definitions of “source” found in other states’ shield laws and glossary of journalism terms published by The Wall Street Journal, an analysis she believes was flawed.

DownWithTheColts was not used by the Star “in any way to investigate and report on its initial story,” the court wrote. The Star’s comment section was instead more akin to a bulletin board where anyone could post a comment. The court seemed intent on requiring some interaction between the editorial staff of the paper and the commenter in order for the shield law to apply, Carroll said.

The Star’s attempt to use the shield law as a defense against the subpoena is not a novel argument. This argument has been used occasionally and has been successful a few times, according to Paul Alan Levy, a lawyer at Public Citizen in Washington, D.C., which filed a friend-of-the-court brief filed in the case.

The Indiana court ultimately adopted New Jersey’s Dendrite test, recognizing it as providing the highest level of protection for constitutionally protected anonymity. But the court may have been influenced by the need to allow plaintiffs a glimmer of hope to find a remedy when and if they are actually defamed by an anonymous speaker. While the Dendrite analysis is difficult for a plaintiff to overcome, they can unmask a commenter if they can make certain showings. But the combination of Section 230 of the Communications Decency Act of 1996, which allows Internet service providers to elude liability for defamatory statements posted by others on their websites, and Indiana’s absolute shield law would have left any person defamed by an anonymous comment left on a news website with no remedy.

As the U.S. Court of Appeals in Richmond, Va. (4th Cir.) noted in Zeran v. America Online, Inc., an early interpretation of the CDA, Section 230 “plainly immunizes computer service providers like AOL from liability for information that originates with third parties.” Put simply, newspapers like the Star cannot be held liable for the defamatory comments of third-party posters. If the court had adopted the shield law argument put forth by the Star, there would be no remedy available whatsoever for the Millers because the shield law would have protected the Star from subpoena, and Section 230 from liability.

How much this affected the court is difficult to say. Carroll does not believe that the court was moved by that problem. “The unavailability of a remedy is not determinative of whether an absolute privilege applies,” she said.

But Levy interpreted the oral argument differently. Although he argued only the First Amendment issue, Levy thought that “the absence of a remedy bothered the panel.”

A movement away from anonymity?

From the perspective of newspapers and other established media outlets with an online presence, the argument over whether shield laws or the First Amendment offer the best means of protecting anonymity may ultimately be a moot point.

Midway through the litigation over DownWithTheColts, the Star moved away from anonymous comments and embraced a model requiring users to login with a Facebook account before commenting on a Star story. Star editor Dennis Ryerson announced the change in a letter to readers that also explained that it was brought about — at least in part — by his belief that “people are avoiding comment now because they don’t want to participate in what they perceive as a gutter of ugliness.”

As media outlets increasingly embrace this model, the utility of Dendrite may very well prove to be limited, Carroll said.

From Levy’s perspective, the move away from anonymity by media outlets is only one relatively small class of cases where anonymous internet speech comes up. “Most Dendrite cases come up in blogs,” message boards, and websites, he said. “Newspapers moving away from anonymity is not going to moot the issue.”

Twitter is a prime example of a service where anonymity remains prevalent, he said.

Retribution in the workplace and in the community remain strong drivers for individuals maintain anonymity when they speak online, particularly if they are economically vulnerable, he said. “Protection for anonymity is still required.”

Levy also thinks that raising the level of discourse online — the reason put forth for the Star’s move to a Facebook model — can be accomplished without sacrificing anonymity. For larger organizations, comment moderating can be effective. But tools remain even for smaller outlets that may not have the resources to devote toward monitoring comment boards.

Levy cites the website Techdirt as one example of a site that allows its community effectively self regulate. Techdirt allows users to vote for comments they find “insightful” or “funny,” and also to report those that are offensive. The site then posts a weekly roundup of the funniest and most insightful comments. This type of self regulation can raise the standard of discussion on the site without requiring individuals to provide their true identity, Levy said.

And, while the issue may largely resolve itself for traditional media outlets, non-traditional media may continue to raise shield law arguments. “You do see bloggers raising shield laws for themselves,” Levy said.