In a ruling issued last week, a superior court judge in Indianapolis ordered several news outlets to disclose the identifying information of people who posted anonymous comments to their online message boards. The ruling, which came as a result of a defamation suit filed by a local charity organization head against several commenters who had criticized his job performance, is one of several around the country to address the issue of “cyber-bullying” and whether a right to anonymity exists for online commentary. The Indianapolis Star, one of the defendants in the suit, reported that the information subpoenaed would include the IP addresses or internet provider information of selected commenters named in the defamation suit.

The ruling found online commentary — even if posted to the website of a journalistic organization — to be outside the scope of the state’s press shield law, which protects a reporter from being forced to disclose the “source of any information procured or obtained in the course of employment” for a newspaper. (Ind. Code 34-46-4-2). The defamation suit’s plaintiffs argued successfully that such postings are not “sources” in any meaningful sense, and that disclosure of the source of message board commentary in no way hinders the newspaper’s ability to collect information or seek the news.

Even if the anonymity of online commentary is not shielded by the news outlets’ press privilege, however, there are legitimate remaining concerns about the ruling’s chilling effect on the individual expression of the commentary authors. Although it is doubtless true, as the plaintiff here argued, that the anonymity afforded by the internet can provide ample hiding room for “cyber-bullying” and personal attacks, it is equally true that internet freedom of expression can provide an outlet for commentary on public issues across a wider forum than would previously have been possible. The facts of this case are particularly troubling in that respect. The plaintiff, Jeffrey Miller, is the former head of Junior Achievement of Central Indiana, a large non-profit organization which provides job- and life-skills training programs to about 25,000 students in the Indianapolis area. In 2010, several newspapers and local news stations reported that the organization was forced to halt a construction program amid questions of misappropriation and missing donation funds stemming from Miller’s tenure. Anonymous online posters, one of which was revealed to be Miller’s predecessor at the organization, made comments on his “greed” and “likely criminal activity.” One urged the prosecutor’s office to launch an investigation.

Online commentary on the website of the Indianapolis Star, the state’s largest newspaper, unquestionably provides a forum for discussion of the public issues discussed in the newspaper’s reports. Though not a public official, Miller’s status as the head of a large charity organization which receives contributions from business and government sources certainly makes the issue of his possible mishandling of funds one of public concern. Far from being gratuitous or defamatory, such commentary is arguably well within the rights of citizens in discussing a figure whose actions had already placed him in the public eye. Moreover, anonymity — a privilege uniquely afforded by the internet forum — may be a prerequisite to discussion of the issue for those who could face reprisals for making their opinions known. Courts have made clear since New York Times v. Sullivan that the sensibilities of public figures must be subordinated to the First Amendment right to comment on issues of public concern. While it is not clear that Miller qualifies as a “public figure” according to the Supreme Court’s libel  jurisprudence, serious consideration of the First Amendment implications of this ruling is warranted. A crackdown on anonymity in the name of preventing “cyber-bullying” carries a significant danger of corroding speech rights on the internet.
The one-page opinion of the superior court judge, S.K. Reid, made no mention of the First Amendment issues implicated in the ruling, either for the media organizations or for the anonymous posters.