Legal View: A setback for free speech online

By John Kominicki The Daily Record Newswire There is no national shield law giving news organizations the right to protect their sources, so when federal grand jury testimony gets leaked or a CIA operative is outed, a judge may legally subpoena the reporter involved and demand names. Good journalists refuse, of course, and are sometimes jailed. The really good ones emerge with a book deal. Lacking a federal statute, 36 states have passed their own laws recognizing that a free press has a fundamental right to spill the beans with the help of people who'd rather not be named. How broadly the protection extends, and to whom, is tested on a regular basis by state and local courts. Over the years, there have been assorted fines and jail time, including a recent five-month stint by a freelance video blogger. In the most famous case of what's sometimes called reporter privilege, New York Times writer Myron Farber was convicted of contempt and sentenced to six months in jail in 1978 for refusing to turn over his notes on the "Dr. X" story, in which a physician was charged with killing patients at a New Jersey hospital. Farber served 40 days but was eventually pardoned by then-Gov. Brendan Byrne. The Times got back $101,000 in fines. The doctor, by the way, was acquitted. The issue came back to the fore last month, when an Indiana judge ordered The Indianapolis Star, local television station WRTV and the Indianapolis Business Journal to turn over information on readers who had posted anonymous comments to the news organizations' websites. And, yes, Indiana has a shield law. The ruling stems from a defamation lawsuit brought by Jeffrey Miller, the retired chief executive of Junior Achievement of Central Indiana, who alleges he lost out on a top city job because of rumors, maliciously spread, that he had misappropriated money at JA. Legal readers will recognize the terms "tortious interference with a business or contractual relationship" and "intentional infliction of emotional distress." (They apparently take Junior Achievement pretty seriously out in the Heartland.) The news organizations fought the judge's ruling, claiming rights to free press and free speech, but lost. They have begun turning over the identifying information, mostly Internet Protocol addresses from posters who commented anonymously. Correctly, so, according to John McEntee, a libel expert at the Farrell Fritz law firm in Uniondale, who suggests that shield laws weren't designed to protect Internet posters. "The laws give certain protections to the media to support the free flow of information and ideas," McEntee told me. "These people are piggybacking on the media, but they don't have the same status as you guys. "These aren't journalists who are posting, they're sometimes people with an ax to grind, cyber bullies." "It's like an anonymous letter to the editor," he added. "You wouldn't publish it without finding out who it's from and verifying the information." Quite true, counselor, and yet anonymous postings to media Web pages are common. At many websites, for example, comments are monitored and the obscene and hateful ones are weeded out, but the sites do not demand real names or identifying email addresses. The truth is, no laws exist on the rights of Internet journalists, and the industry's few self-imposed rules change often. We've tried to walk the razor's edge between the protection of reputation and what the Supreme Court has called "the profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." So far, the courts have also generally extended that commitment to Web posters. The Indiana decision doesn't really change that, but it sends the clear message that posters may be held legally accountable for their comments. The days of hiding behind an anonymous identity appear to be numbered. Published: Wed, Apr 6, 2011