ALITO, J.

            The United States Court of Appeals for the Sixth Circuit held that our precedents clearly establish that a prisoner is in custody within the meaning of Miranda v. Arizona, 384 U. S. 436 (1966), if the prisoner is taken aside and questioned about events that occurred outside the prison walls. Our decisions, however, do not clearly establish such a rule, and therefore the Court of Appeals erred in holding that this rule provides a permissible basis for federal habeas relief under the relevant provision of the Antiterrorism and Effective Death Penalty Act of 1996(AEDPA), 28 U. S. C. §2254(d)(1). Indeed, the rule applied by the court below does not represent a correct interpretation of our Miranda case law. We therefore reverse.

            . . . .

            . . . If a break in custody can occur while a prisoner is serving an uninterrupted term of imprisonment, it must follow that imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.

            There are at least three strong grounds for this conclusion. First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest. In the paradigmatic Miranda situation—a person is arrested in his home or on the street and whisked to a police station for questioning—detention represents a sharp and ominous change, and the shock may give rise to coercive pressures. A person who is“cut off from his normal life and companions,” Shatzer, supra, at ___ (slip op., at 7), and abruptly transported from the street into a “police-dominated atmosphere,” Miranda, 384 U. S., at 456, may feel coerced into answering questions.

            By contrast, when a person who is already serving a term of imprisonment is questioned, there is usually no such change. “Interrogated suspects who have previously been convicted of crime live in prison.” Shatzer, 559 U. S., at ___ (slip op., at 14).  . . . .

            Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.  . . . .

            Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence. . . . .

            In short, standard conditions of confinement and associated restrictions on freedom will not necessarily implicate the same interests that the Court sought to protect when it afforded special safeguards to persons subjected to custodial interrogation. Thus, service of a term of imprisonment, without more, is not enough to constitute Miranda custody.

B 

            The two other elements included in the Court of Appeals’ rule—questioning in private and questioning about events that took place outside the prison—are likewise insufficient. Taking a prisoner aside for questioning—as opposed to questioning the prisoner in the presence of fellow inmates—does not necessarily convert a “noncustodial situation . . . to one in which Miranda applies.” Mathiason, 429

U. S., at 495. When a person who is not serving a prison term is questioned, isolation may contribute to a coercive atmosphere by preventing family members, friends, and others who may be sympathetic from providing either advice or emotional support. And without any such assistance, the person who is questioned may feel overwhelming pressure to speak and to refrain from asking that the interview be terminated.

            By contrast, questioning a prisoner in private does not generally remove the prisoner from a supportive atmosphere. Fellow inmates are by no means necessarily friends. On the contrary, they may be hostile and, for a variety of reasons, may react negatively to what the questioning reveals. In the present case, for example, would respondent have felt more at ease if he had been questioned in the presence of other inmates about the sexual abuse of an adolescent boy? Isolation from the general prison population is often in the best interest of the interviewee and, in any event, does not suggest on its own the atmosphere of coercion that concerned the Court in Miranda.

            It is true that taking a prisoner aside for questioning may necessitate some additional limitations on his freedom of movement. A prisoner may, for example, be removed from an exercise yard and taken, under close guard, to the room where the interview is to be held. But such procedures are an ordinary and familiar attribute of life behind bars. Escorts and special security precautions may be standard procedures regardless of the purpose for which an inmate is removed from his regular routine and taken to a special location. For example, ordinary prison procedure may require such measures when a prisoner is led to a meeting with an attorney.

            Finally, we fail to see why questioning about criminal activity outside the prison should be regarded as having a significantly greater potential for coercion than questioning under otherwise identical circumstances about criminal activity within the prison walls. In both instances, there is the potential for additional criminal liability and punishment. If anything, the distinction would seem tocut the other way, as an inmate who confesses to misconduct that occurred within the prison may also incur administrative penalties, but even this is not enough to tip the scale in the direction of custody.

            When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. See Yarborough, 541 U. S., at 665. An inmate who is removed from the general prison population for questioning and is “thereafter . . . subjected to treatment” in connection with the interrogation “that renders him ‘in custody’ for practical purposes . . . will be entitled to the full panoply of protections prescribed by Miranda.” Berkemer, 468 U. S., at 440.

            . . . .

            For these reasons, the Court of Appeals’ categorical rule is unsound.

B 

            The record in this case reveals that respondent was not taken into custody for purposes of Miranda. To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the deputies. The following facts also lend some support to respondent’s argument that Miranda’s custody requirement was met: The interview lasted for between five and seven hours in the evening and continued well past the hour when respondent generally went to bed; the deputies who questioned respondent were armed; and one of the deputies, according to respondent, “[u]sed a very sharp tone,” . . . and, on one occasion, profanity. . . . These circumstances, however, were offset by others. Most important, respondent was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted.  . . . (“I was told I could get up and leave whenever I wanted”); . . .. Moreover, respondent was not physically restrained or threatened and was interviewed in a well-lit, average-sized conference room, where he was “not uncomfortable.”   . . .He was offered food and water, and the door to the conference room was sometimes left open.  . . . “All of these objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.” Yarborough, supra, at 664–665.

            Because he was in prison, respondent was not free to leave the conference room by himself and to make his own way through the facility to his cell. Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his cell. But he would have been subject to this same restraint even if he had been taken to the conference room for some reason other than police questioning; under no circumstances could he have reasonably expected to be able to roam free.  [Footnote omitted.]  And while respondent testified that he “was told . . . if I did not want to cooperate, I needed to go back to my cell,” these words did not coerce cooperation by threatening harsher conditions. App. to Pet. for Cert. 71a; see id., at 89a (“I was told, if I didn’t want to cooperate, I could leave”). Returning to his cell would merely have returned him to his usual environment.  . . . .

            Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told that he was free to end the questioning and to return to his cell—we hold that respondent was not in custody within the meaning of Miranda.

ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, and KAGAN, JJ., joined.

GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which BREYER and SOTOMAYOR, JJ., joined:

            . . . I disagree with the Court’s further determination that Fields was not in custody under Miranda. Were the case here on direct review, I would vote to hold that Miranda precludes the State’s introduction of Fields’s confession as evidence against him.

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RILEY, J.

            On October 27, 2003, following his arrest two days before, Vickers appeared at his initial hearing along with a group of other defendants. The trial court advised the defendants of their rights, including the right to be represented by an attorney, the risk of proceeding without an attorney, and the availability of appointed counsel. After confirming his name, personal information, and reviewing the potential penalties facing him, the trial court asked Vickers if he wanted an attorney. Vickers replied that he needed to speak with his family. The trial court asked one of Vickers’ family members about the possibility of retaining an attorney and the family member agreed to try to find an attorney. The trial court requested that the family member let him know “right away” so that Vickers would have time to request appointment of public counsel. (Transcript p. 21). Vickers was nineteen years old. 

            On October 28, 2003, the State filed an Information charging Vickers with operating a vehicle with a specified blood or breath alcohol level or a controlled substance or its metabolite in his body, as a Class C misdemeanor, Ind. Code § 9-30-5-1(a); illegal possession of alcohol as a Class C misdemeanor, I.C. § 7.1-5-7-7(a)(2); and operating a vehicle while intoxicated causing endangerment as a Class A misdemeanor, I.C. § 9-30-5-2(b).

            On November 24, 2003, Vickers appeared for a pretrial hearing and met with the prosecutor. The prosecutor gave Vickers a plea agreement form with all pertinent information regarding the offenses, sentence, and court fees completed. Vickers signed and initialed each item in the plea agreement. Vickers also signed a waiver of attorney form prepared by the prosecutor. The bottom of the form contained the following words in all capital letters, underlined and in bold font: “I DECLARE THAT I DO NOT WANT TO BE DEFENDED BY AN ATTORNEY IN THIS CASE.” (Appellant’s App. p. 18). The form had a place for Vickers to insert his last year of schooling, but this was left blank. Vickers also wrote his name in the caption of the Order to Accept Waiver of Attorney. However, the order was unsigned by the trial court and did not have the name of the prosecutor or the date completed. That same day, Vickers pled guilty to operating a vehicle while intoxicated causing endangerment, as a Class A misdemeanor.  [Footnote omitted.] The chronological case summary on that day records, in relevant part, that “[p]arties appear; plea agreement filed. Judgment of [c]onviction and [s]entence entered.” (Appellant’s App. p. 1).

            On January 21, 2011, Vickers filed his Verified Petition for Post-Conviction Relief alleging that his guilty plea was invalid because he had not knowingly or voluntarily waived his right to counsel and because his plea negotiations were tainted because he had not validly waived his right to counsel. The Petition requested specific findings of fact and conclusions of law under Ind. Trial Rule 52 and Ind. Post-Conviction Rule 1, § 6. Vickers also served discovery on the State, including requests for admissions. On February 16, 2011, the State filed its Answer, but did not otherwise respond to Vickers’ discovery requests. On April 19, 2011, a hearing was held on Vickers’ Petition. On June 6, 2011, the post-conviction court issued its Order Granting Defendant’s Petition for Post-Conviction Relief . . . .

            . . . .

            Here, the record does not contain the trial court’s determination that Vickers waived his right to counsel or unequivocally asserted his right to proceed pro se. In its Order, the post-conviction court found that “[i]t is the intent and policy of this court to record all guilty plea hearings.” (Appellant’s App. p. 50). Next, it found that “[n]o record of the guilty plea exists.” (Appellant’s App. p. 50). The post-conviction court thus concluded that “it is impossible to find that [Vickers] knowingly waived his right to counsel.” (Appellant’s App. p. 51). We note that, apart from the foregoing, the post-conviction court’s Order contains no other findings as to the validity of Vickers’ waiver or his unequivocal assertion to proceed pro se.

            The State argues that the lack of a recording from the guilty plea hearing does not in and of itself afford a basis to conclude that a defendant did not knowingly and voluntarily waive his right to counsel. In Hall v. State, our supreme court concluded that Hall failed to meet his burden of proof that the trial court did not advise him of his Boykin rights by relying exclusively upon the absence of a record of his guilty plea hearing. Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006).   [Footnote omitted.]  The supreme court reasoned that “[t]he fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief.” Id. at 470. Instead, the burden remains on the petitioner to prove his claim by a preponderance of the evidence. Id. Thus, the lack of a record showing that the trial court determined a waiver to be valid does not mean that it did not make such determination. See id. at 472.  [Footnote omitted.]  Thus, in light of this supreme court precedent, to the extent the post-conviction court’s grant of relief rests upon the lack of a record, this was error. See Mansfield v. State, 850 N.E.2d 921, 925 (Ind. Ct. App. 2006), trans. denied. Accordingly, we must look to other evidence in the record supporting the judgment to determine whether Vickers met his burden of proof establishing that he did not waive his right to counsel or did not unequivocally assert his right to proceed pro se.

            Even considering only evidence favorable to the judgment, we are unable to find that Vickers met his burden of proof. Aside from the unsigned order on the waiver of right to counsel form and Vickers’ admittedly hazy recollection of events, Vickers put forth scant evidence demonstrating that he did not waive his right to counsel or did not assert his right to proceed pro se. Vickers testified that he wanted an attorney at all times and did not recall telling the trial court that he did not want an attorney. He testified that he could not recall reading the waiver of attorney form and that he did not understand the waiver form or the plea agreement. Finally, Vickers points to incomplete portions of the waiver and its accompanying unsigned order.

            We note that “[i]f the record establishes that the defendant can read, the defendant’s signing a written advisement can be sufficient to inform a defendant of his rights discussed in the advisement and to establish that the defendant waived those rights.” Belmares-Bautista v. State, 938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010). Further, “the defendant bears the burden of showing that he could not read the advisements or that [his] signature was produced by coercion or misapprehension.” Id. Vickers testified that he could read, had graduated from high school, and had signed not only the waiver of attorney form but reviewed the plea agreement with the prosecutor and initialed it. Thus, at best, Vickers’ testimony establishes only that he does not know whether he waived his right to counsel or asserted his right of self-representation.

            Absent a clear requirement that all waivers of counsel be supported by an audio recording, we are unable to conclude that Vickers met his burden of proof to establish that he did not validly waived his right to counsel or that he asserted his right to self-representation. Accordingly, the State has shown that the post-conviction court committed clear error by granting Vickers post-conviction relief.

FRIEDLANDER, J. and MATHIAS, J. concur.

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BARTEAU, S.J.

            On April 2, 2010, Special Agent Rodriguez with the Immigration and Customs Enforcement Unit of the Department of Homeland Security, assisted by Officer Humerickhouse with the Indianapolis Metropolitan Police, was conducting two investigations at a flea market in Indianapolis: 1) Operation Community Shield (looking for illegal immigrants who are gang members) and 2) customs detail for counterfeit NCAA items. Yanez was present at the flea market that day with a female companion. At some point, Yanez was approached by Special Agent Rodriguez, who began questioning him. Officer Humerickhouse subsequently approached the two men to assist Special Agent Rodriguez. At that time, Yanez began reaching toward his groin area, and Officer Humerickhouse asked him to keep his hands out of his pockets. She also asked him if he had any weapons and if she could perform a pat-down search. Yanez consented to the search. As Officer Humerickhouse reached down to begin the pat-down search,

she noticed a baggie with marijuana sticking out of Yanez’s pants pocket. Yanez was charged with possession of marijuana as a Class A misdemeanor. A bench trial was held during which Yanez moved to suppress the marijuana based upon the lack of constitutional basis for the investigatory stop. The trial court denied the motion and found Yanez guilty as charged. It is from this conviction that Yanez now appeals.

DISCUSSION AND DECISION

            Yanez contends that his rights under both the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution were violated when Special Agent Rodriguez stopped him and questioned him at the flea market. Essentially, Yanez asserts that the trial court erred by admitting evidence of the marijuana at trial because it was obtained as a result of the unconstitutional investigatory stop and therefore should have been excluded. Because it is dispositive in this case, we need only address the issue on state constitutional grounds.

            . . . .

            Here, there was absolutely no evidence of a concern or suspicion that a violation of law had occurred. The evidence shows only that Yanez was at a flea market and was talking loudly to his female companion. The evidence further discloses that Special Agent Rodriguez was the officer who stopped Yanez; however, Special Agent Rodriguez did not testify at the trial of this cause. The State’s sole witness was Officer Humerickhouse, who approached Special Agent Rodriguez and Yanez after Yanez had already been stopped and subjected to questioning. Officer Humerickhouse testified that Special Agent Rodriguez was at the flea market that day with regard to immigration enforcement, and she indicated that looking for tattoos is part of the criteria.

            The State has failed to fulfill its burden under Article I, Section 11 of the Indiana Constitution to establish the reasonableness of its actions in this case. The State failed to present the testimony of Special Agent Rodriguez, the officer who initiated the stop of Yanez. There was no evidence presented as to why Yanez was stopped or what occurred between him and Special Agent Rodriguez when he was stopped. Thus, this Court is unable to assess the reasonableness of the actions of Special Agent Rodriguez in stopping Yanez.

            Further, the evidence that was presented on the State’s behalf in the form of the testimony of Officer Humerickhouse also failed to establish the reasonableness of the State’s actions. Her testimony showed that Yanez was at a flea market speaking loudly to his female companion and that he apparently had a tattoo. Officer Humerickhouse did not stop Yanez; rather, she approached the two men after Special Agent Rodriguez had stopped Yanez and after he had begun questioning Yanez. The evidence presented by Officer Humerickhouse is her postulation of what occurred between Yanez and Special Agent Rodriguez and does not meet the reasonableness standard. Moreover, her discovery of marijuana after Yanez was stopped cannot justify the initial illegal seizure of Yanez by Special Agent Rodriguez.

            In addition, although the degree of intrusion on Yanez’s activities was minimal, that factor is not sufficient to convert an otherwise unconstitutional stop into a constitutional one. Finally, the extent of the officers’ need to investigate was nominal. Nothing had occurred, other than Yanez speaking loudly in a busy public flea market, to trigger a need to investigate.

RILEY, J., concurs.

BARNES, J., concurring in result with separate opinion:

            If this case solely involved Officer Humerickhouse and her discovery of marijuana on Yanez’s person, we would have a much different case. It doesn’t, and thus this result. Generally, police officers are not prohibited, under either the United States or Indiana Constitutions, from approaching persons in public places and asking them questions. See Powell v. State, 912 N.E.2d 853, 862-63 (Ind. Ct. App. 2009). Where an encounter such as this is “consensual,” the officer has not seized anyone and there are no constitutional implications. Id. Moreover, when Officer Humerickhouse approached Yanez, she noticed that he smelled “strongly” of burnt marijuana. Tr. p. 24. This certainly would have warranted further investigation into whether Yanez possessed marijuana, possibly even including a search of his person. See Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011).

            However, Yanez already was speaking with Agent Rodriguez when she decided to approach Yanez; the question is whether Agent Rodriguez had seized him.  [Footnote omitted.]  Circumstances that might indicate a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the suspect by an officer, or the use of language or tone of voice indicating that compliance with an officer’s request might be compelled.  . . . Without Agent Rodriguez’s testimony, it is very difficult to assess whether any of these circumstances existed, [footnote omitted] whether he had seized Yanez, and, thus, whether Yanez continued to be seized when Officer Humerickhouse approached. We know nothing directly of what Agent Rodriguez said to Yanez. Even if Yanez had been seized, it would not necessarily have been an illegal seizure if Agent Rodriguez possessed reasonable suspicion or probable cause of wrongdoing to support the seizure. See id. at 859. Without Agent Rodriguez’s testimony, we cannot assess that question.

            As the proponent of evidence recovered during a warrantless search, it was the State’s burden to prove that that search was constitutional. See Willis v. State, 780 N.E.2d 423, 428 (Ind. Ct. App. 2002). Although we can speculate that Yanez’s initial encounter with Agent Rodriguez might have been “consensual,” as that word is defined by case law, I believe it was the State’s burden to establish that it was. Without Agent Rodiguez’s testimony, the State failed to meet that burden. Thus, I concur in result.

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RUCKER, J.

            In this case the State offered, concurrently with its strike of venireperson Bard, reasons for the strike:

For the record I put a preempt on Bard for the reasons that he has indicated that he does not wish to serve. He has health issues. He says he has trouble listening, and he mentioned on his prior convictions that a family member had been convicted of conversion, and his potential knowledge of witnesses.

Tr. at 140. Cartwright then stated “Well, I object under Batson. . . . [f]or the record, Mr. Bard is the only black man in the jury box, an[d] the entire venire.” Tr. at 140. The trial court then stated:

All right, and for purposes of the record under Batson [v.] Kentucky, the Court does not find a prima fa[cie] case of discrimination at this time, but despite that, the State has given their . . . reasons . . . . so I don‟t find a pattern at this time. However, the State has on record indicated what their reasons are.

Tr. at 141. Then, after a discussion with the court reporter as to whether she was able to hear and record the Batson exchange that took place at the bench, the trial court excused the jurors from the courtroom and held a separate Batson hearing on the strike of venireperson Bard. See Tr. at 143. During the hearing, Cartwright argued that under Batson he “is allowed to have Mr. Bard as a juror in this case. . . . [because] he is the only black man in the venire, and [Cartwright] is a black man.” Tr. at 144. This was the extent of Cartwright’s Batson argument before the trial court.  [Footnote omitted.] The State again gave its

race-neutral reasons, the only difference being that it did not reiterate the reason related to Bard’s potential knowledge of witnesses. See Tr. at 149-50. The trial court then declined to find a prima facie case of discrimination, but noted that “the State wanted to give their race neutral reasons anyway, they have made those race neutral reasons on the record, and for that reason I deny your Batson challenge.” Tr. at 151.

            The trial court incorrectly found no prima facie case of discrimination under the circumstances present here. Our cases are clear that “the removal of ‘the only . . . African American juror that could have served on the petit jury’” is sufficient to establish a prima facie case under Batson. Addison, slip op. at 6 (quoting McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004)). But as the Court of Appeals correctly observed, “where, as here, a prosecutor has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing of purposeful discrimination becomes moot.” Cartwright, 950 N.E.2d at 811. Accord Hernandez, 500 U.S. at 359 (recognizing that in the Batson context, “where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant” (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (brackets omitted)).

            On transfer Cartwright argues that the United States Supreme Court decision in Snyder mandates the conclusion that the strike of Bard was racially motivated. Cartwright declares that Snyder “held that under the third step of Batson, the trial court must thoroughly analyze the State’s proffered reasons for striking an African-American juror from the jury panel.” Def.’s Resp. to Trans. at 7. Cartwright urges that Snyder requires a trial court to explicitly state its reasons for deciding a Batson challenge. We do not read Snyder so expansively. Although Snyder recognized that the trial court ultimately must make the determination of discrimination, and the Court in Snyder noted that there, the trial court did not provide reasons for its Batson ruling, Snyder did not declare that trial courts must do so. Indeed in a recent post-Snyder opinion, at least one federal circuit has declared “federal law has never required explicit fact-findings following a Batson challenge, especially where a prima facie case is acknowledged and the prosecution presents specific nondiscriminatory reasons on the record.” Stenhouse v. Hobbs, 631 F.3d 888, 893 (8th Cir. 2011) (quoting Smulls v. Roper, 535 F.3d 853, 860 (8th Cir. 2008) (en banc)).

            In Snyder, the prosecution offered two reasons for its strike of African American venireperson Brooks: (1) that he “looked very nervous” and (2) that he stated he was concerned about taking time away from his student teaching obligation to sit on the jury. Snyder, 552 U.S. at 478. The Supreme Court noted that the trial court judge had included no express finding as to Brooks‟ demeanor – i.e., his nervousness – in the record. And because demeanor cannot be shown from a “cold record” without a specific finding by the trial court, the Court refused to credit the prosecutor’s demeanor-based reason for striking Brooks. Id. at 479.

            The Court then examined the record for evidence supporting the strike of Brooks based on his concern about missing his student teaching obligation, a requirement for his degree. In essence, the Court found that Brooks had been rehabilitated on this issue because Brooks’ purported concern appeared to have dissipated after the trial court spoke with his dean and assured him that the jury service would not pose a problem. See id. at 482-83. The Court further compared Brooks to similarly situated seated jurors and found that the State had accepted at least two white jurors who had expressed similar concerns about having conflicting obligations. Id. at 483-84. In light of this, and because there was nothing in the record showing that the trial judge credited the nervousness justification, the Court concluded that the defendant’s Batson challenge should have succeeded.

            By contrast, in this case all of the States proffered reasons for the strike of Bard were race-neutral, and none were demeanor-based. After examining the record, as did the Supreme Court in Snyder, we find no evidence of pretext in the State’s strike of venireperson Bard. Bard volunteered on voir dire examination that he did not wish to serve on the jury. Tr. at 126. He stated that he was taking a diuretic which caused him “a frequent problem of going to the restroom.” Tr. at 127, 31. He also stated, “I’m not a good listener, but . . . but that’s from all my life even school.” Tr. at 127. And on his juror questionnaire, he responded “Yes conversion” to the question “Have you or any of your immediate family members been charged with or convicted of a crime.” Appellant’s Appendix at 118.2 The prosecutor did not run afoul of Batson for striking Bard based on these statements.

            . . . .

            In sum, Cartwright essentially argues that the State failed to meet its burden to demonstrate its strike of Bard was not motivated by discriminatory purpose. But the State had no such burden under Batson. The State was only required to come forth with race-neutral reasons for striking Bard, and it did so. It was Cartwright’s burden to demonstrate that those reasons were pretextual. He has not carried his burden.

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.

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RUCKER, J.

            The essential facts are these. In the early afternoon hours of September 8, 2009 Kokomo police officer Gary Taylor – a member of the Drug Task force – planned to make a controlled buy of narcotics at 436 South Indiana Street. As Officer Taylor headed in that direction he observed a car in front of him – a black Oldsmobile with tinted windows. The car stopped at that address for a short period. Someone came out of the house, went up to the car, went back into the house, and the car drove off. Believing a drug transaction had occurred Officer Taylor radioed canine Drug Task Force Officer Chad VanCamp and advised him to make a traffic stop.

            Several blocks from 436 South Indiana Street, Officer VanCamp initiated a stop of the black Oldsmobile on grounds of a “window tint” violation.1 See Appellant’s App. at 18. Abbott was a passenger in the automobile. Both the driver and Abbott were ordered out of the car. A subsequent search of Abbott revealed rolling papers, a plastic bag containing twenty-six other smaller baggies, and a plastic baggie taped underneath his scrotum containing 1.15 grams of cocaine and 5.17 grams of marijuana.

            As it turns out, Officer VanCamp stopped the car within 1,000 feet of the Main Street Methodist Church which housed the Acacia Academy – a private school. In point of fact Officer VanCamp stopped the car near the intersection of Main Street and Harrison, just a few yards from the church. Abbott was charged with dealing in cocaine as a Class A felony, possession of cocaine as a Class B felony, and possession of marijuana as a Class A misdemeanor. A jury found him guilty of possessing cocaine and marijuana and acquitted him of the dealing charge.

            . . . .

            . . .[W]e conclude that the circumstances resulting in the enhancement of Abbott’s offense from a Class D felony to a Class B felony weigh heavily in assessing the appropriateness of the sentence imposed. We hasten to note there is no question that the trial court properly exercised its sentencing discretion in this case. Nonetheless, “[a]lthough a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution ‘authorize[] independent appellate review and revision of a sentence imposed by the trial court.’” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). Our appellate authority is implemented through Indiana Appellate Rule 7(B), which allows us to “revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

            Concerning Abbott’s character, the record shows he has an extensive history of juvenile delinquency and adult criminal convictions that include resisting arrest, receiving stolen property, and possession of cocaine. As the Court of Appeals observed, “[c]learly, Abbott has not reformed his criminal behavior despite his numerous prior contacts with the criminal justice system.” Abbott, 950 N.E.2d at 365. We agree. But this is not the end of the inquiry. As to the nature of the offense, the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. And the advisory sentence for a Class B felony is ten years. See I.C. § 35-50-2-5. We emphasize however that Abbott’s offense was enhanced from a Class D felony – which has an advisory sentence of one and a half years, see I.C. § 35-50-2-7 – to a Class B felony because he was “in, on, or within one thousand feet (1000) of . . . school property.” I.C. § 35-48-4-6(b)(2)(i). However, but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine. These circumstances compel us to conclude that although Abbott’s character does not necessarily justify a revision of his sentence, the nature of Abbott’s offense in this case renders his twenty-year maximum sentence inappropriate. We therefore grant transfer and revise Abbott’s sentence to twelve years – two years above the statutory advisory term for a Class B felony.

Shepard, C.J., and Sullivan, J., concur.

David, J., dissents with separate opinion in which Dickson, J., concurs:

            Over one gram of cocaine and five grams of marijuana were found by a physician in a plastic bag hidden under Abbott’s scrotum. In addition, Abbott was arrested within 1000 feet of a school. Indiana Code section 35-48-4-6(b)(2) accordingly elevates Abbott’s Class D felony conviction of possession of cocaine to a Class B felony. I write to stress two important points about Abbott’s crime and sentence.

First, in Walker v. State, this Court held that a defendant’s presence in a school zone is a strict liability element. 668 N.E.2d 243, 244 (Ind. 1996) (“[W]e can imagine an altogether rational reason the legislature might decide to write a statute with a strict liability punishment provision.”). It is clear that with this provision the legislature intended to deter drug activity from in and around schools and to give more discretion to law enforcement, prosecutors, and judges in combating the evils of drugs. As this Court has aptly stated, “‘[a] dealer’s lack of knowledge of his proximity to the schools does not make the illegal drug any less harmful to the youth in whose hands it may eventually come to rest.’” Id. at 244–45 (quoting Williford v. State, 571 N.E.2d 310, 313 (Ind. Ct. App. 1991), trans. denied).

Second, although sympathy may arise when a defendant who commits a Class D felony suddenly finds himself facing a Class B felony sentence, the trial court here adequately justified the sentence imposed. Thus, I agree with the Court of Appeals conclusion that the nature of the offense and Abbott’s character “support[] the trial court decision to impose a twenty-year sentence.” Abbott v. State, 950 N.E.2d 357, 365 (Ind. Ct. App. 2011). Specifically, in regards to Abbott’s offense, the Court of Appeals stated that “Abbott was found with a not insubstantial amount of cocaine and marijuana, along with plastic baggies that are commonly used to package illicit drugs for sale.” Id. at 364–65. The Court of Appeals also appropriately noted that “Abbott has ten convictions, including felony convictions for receiving stolen property, cruelty to an animal, and possession of cocaine. . . . Clearly, Abbott has not reformed his criminal behavior despite his numerous prior contacts with the criminal justice system.” Id. at 365.

For the foregoing reasons, I respectfully dissent.

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RUCKER, J.

            We grant transfer in this case to explore whether and to what extent a defendant’s race-based Batson claim may be reviewed on appeal where at trial the defendant failed to rebut the State’s proffered race-neutral reason for striking a black venireperson.

            . . . .

            A defendant’s race-based Batson claim involves a three-step process. At the first stage the burden is low, requiring that the defendant only show circumstances raising an inference that discrimination occurred. See Johnson v. California, 545 U.S. 162, 170 (2005). This is commonly referred to as a “prima facie” showing. In this case the record shows that in the first round of voir dire, the State used its peremptory challenges to strike the only three African Americans on the venire panel. Over Addison’s objection, the State acknowledged “that there is a prima facie case of a pattern on the State’s part.” Tr. at 90. The State’s acknowledgment was certainly appropriate. Although the removal of some African American jurors by the use of peremptory challenges does not, by itself, raise an inference of racial discrimination, see Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996), the removal of “’the only . . . African American juror that could have served on the petit jury’ does ‘raise an inference that the juror was excluded on the basis of race.’” . . . .

            At the second stage, if the first stage showing has been satisfied, then the burden shifts to the prosecution to “offer a race-neutral basis for striking the juror in question.” Snyder, 552 U.S. at 477 (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting)). “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quoting Hernandez, 500 U.S. at 360). Although the race-neutral reason must be more than a mere denial of improper motive, the reason need not be particularly “persuasive, or even plausible.” Id.

            Here, the State explained that it exercised its peremptory strike of venireperson Turner because, according to the State, Turner essentially said that he would simply follow the recommendation of the health care professionals on the question of the insanity defense. This of course was of particular concern to the State because both doctors would later testify that Addison was insane at the time of the offense. And this Court has noted that expert opinion is not dispositive on the question of insanity. See Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004) (affirming defendant’s conviction of guilty but mentally ill notwithstanding that all the experts who examined the defendant were of the opinion that defendant was insane at the time of the crime). Accord Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995) (noting that the trier of fact is free to disregard the unanimous testimony of experts and rely on conflicting testimony of lay witnesses). An explanation that a venireperson has expressed an unwillingness to be fair to one side or another is facially race-neutral. See Highler v. State, 854 N.E.2d 823, 827-28 (Ind. 2006) (declaring that prosecutor’s explanation that statements juror made in his questionnaire and during voir dire raised questions about juror’s ability “to be fair and impartial to the State” was facially race-neutral). In sum, the State carried its burden of offering a race-neutral reason for striking venireperson Turner.

            At the third and last stage of a Batson inquiry, “in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder, 552 U.S. at 477 (quoting Miller-El, 545 U.S. at 277 (Thomas, J., dissenting). Accord Jeter v. State, 888 N.E.2d 1257, 1263 (Ind. 2008). Although the burden of persuasion on a Batson challenge rests with the party opposing the strike, Jeter, 888 N.E.2d at 1264, the third step – determination of discrimination – is the “duty” of the trial judge. See Miller-El, 545 U.S. at 239 (quoting Batson, 476 U.S. at 98); Jeter, 888 N.E.2d at 1264. The trial court evaluates the persuasiveness of the step two justification at the third step. It is then that “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768. The issue is whether the trial court finds the prosecutor’s race-neutral explanation credible. “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it.” Miller-El, 545 U.S. at 251-52 (citations omitted). Also, at the third stage, the defendant may offer additional evidence to demonstrate that the proffered justification was pretextual.

            Here, in response to the State’s explanation, Addison essentially complained that he did not think the explanation was race-neutral. But he offered nothing to substantiate his position other than to say that the State did not “follow-up” on its questioning of Turner. Tr. at 92. And Addison did not explore how or why failing to “follow-up” was evidence of pretext. However, it is not at all clear that the trial court properly discharged its third-stage duty of determining whether Addison had shown purposeful discrimination. For example the trial court did not indicate whether or why it found the State’s proffered explanation credible. Although at least one federal circuit court has declared “federal law has never required explicit fact-findings following a Batson challenge, especially where a prima facie case is acknowledged and the prosecution presents specific nondiscriminatory reasons on the record,” Stenhouse v. Hobbs, 631 F.3d 888, 893 (8th Cir. 2011) (quoting Smulls v. Roper, 535 F.3d 853, 860 (8th Cir. 2008) (en banc)), nonetheless by simply declaring, without more, that the State “articulated race neutral reasons for striking all three jurors,” Tr. at 93-94, the trial court appears to have combined stages two and three of the Batson inquiry. This was incorrect. “The analytical structure established by Batson cannot operate properly if the second and third steps are conflated.” United States v. Rutledge, 648 F.3d 555, 559 (7th Cir. 2011) (remanding cause to the trial court for an explicit step-three credibility finding to support its decision denying a Batson challenge). In any event other than essentially contending that the State’s explanation was pretextual Addison offered the trial court no reason to cast doubt on the State’s explanations for the strike. And without any specific objections or further evidence from Addison, the trial court accepted the State‟s reasons for striking juror Turner as legitimate and race-neutral.

            On appeal however Addison advances a slightly different claim. He contends that the State’s explanation for striking juror Turner was pretextual because, according to Addison, the voir dire record in this case shows that non-minority venirepersons gave the same or similar answers as those given by Turner and they were not stricken.

            It is certainly true that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at 241. But how should we treat a defendant’s appellate claim in this regard where the defendant offered no substantive argument to the trial court as to why the State’s proffered reason for striking a black panelist is pretextual?

            Our appellate courts have not been presented with this precise question. There is of course ample authority for the proposition that “a defendant may not argue one ground for objection at trial and then raise new grounds on appeal.”  . . . In such circumstances the issue is waived. Gill, 730 N.E.2d at 711. And to be sure both this Court and the Court of Appeals have ruled that Batson challenges were waived given the facts in a particular case.  . . .  But in this case the defendant did make a specific Batson objection, and there is a trial record of the voir dire.

            . . . .

            Rather than treating this failure as a waiver of Addison’s Batson claim and thus forfeited for appellate consideration, we align ourselves with those jurisdictions that examine such claims on appeal, albeit under a more rigorous standard of review. Our fundamental error doctrine is equal to the task.  . . . .

            D. Analysis

            In proffering its race-neutral reason for excluding juror Turner, the State contended that in response to a question concerning the insanity defense Turner replied that he was “going to go by what the professionals say” and “when asked what else would contribute to making his decision, he had trouble articulating anything other than, well, I’ll just go by whatever the professionals say.” Tr. at 91. According to the State “[a]ll he did was to articulate is, ‘Well, I’d just go with the doctors. I’d just go with the doctors.’” Tr. at 93. In point of fact this is not an accurate characterization of Turner’s voir dire response. The record shows that Turner was first examined by the State. The following exchange occurred:

[Lead Deputy Prosecutor]: I‟m sorry, Mr. Turner, your questionnaire didn’t come through, I can barely read the writing. I think it’s the pen. How are you currently employed, sir?

[Venireperson Turner]: I work with GPC Parts Company.

[Lead Deputy Prosecutor]: Oh, a parts company, okay.

[Venireperson Turner]: Yes.

[Lead Deputy Prosecutor]: Someone close to you has been charged with a crime and committed a crime; is that correct?

[Venireperson Turner]: No. I got the wrong check box or something?

[Lead Deputy Prosecutor]: I see something here for forgery is what’s listed.

[Venireperson Turner]: No.

[Lead Deputy Prosecutor]: Okay. Maybe I have the wrong questionnaire here.

[Venireperson Turner]: I think you’re asking the wrong question.

[Lead Deputy Prosecutor]: I apologize. No, the one I’ve got here, I don’t think it‟s him.

[Second Deputy Prosecutor]: That’s okay. Why don’t you ask him individually.

[Lead Deputy Prosecutor]: All right. Anything that we’ve discussed here that might affect your ability to sit here today?

[Venireperson Turner]: No. I‟m totally okay.

[Lead Deputy Prosecutor]: No. Ready to go, listen, and make judgments accordingly?

[Venireperson Turner]: Yes, sir.

[Lead Deputy Prosecutor]: All right. Well, thank you very much for your time. I’m going to pass the jury for cross at this time, Your Honor.

Tr. at 62-63. Turner was the final juror in the first group of venirepersons questioned by the State. The record shows that although questioning individually all fourteen venirepersons, the State only briefly touched upon the issue of the insanity defense, and then with only two venirepersons. See Tr. at 42-45. 15

            The defense then began its questioning, and individually questioned each venireperson concerning his or her thoughts and opinions about the insanity defense. Turner was the ninth person to be so questioned. The following exchange occurred.

[Defense Counsel]: Okay Mr. Turner, you’ve been awful quiet up there, haven’t – well, let me pick on you a little bit, what do you think about it?

[Venireperson Turner]: Oh, I don’t know.

[Defense Counsel]: You think it’s selling you a bunch of hogwash?

[Venireperson Turner]: Huh – no, it’s not, no, it’s not for me to say, you know, who’s – who’s sane and who’s not. I guess you just would have to go by what the professionals say and kind of interpret all the facts and take it all in. It’s a whole lot to take in.

. . .

[Defense Counsel]: Would you agree that it would be important to look at the facts surrounding the crime?

[Venireperson Turner]: Yes.

[Defense Counsel]: Okay. And a little bit about my client’s history of mental illness. Do you think that would be important?

[Venireperson Turner]: Uhm-hmm.

Tr. at 77-78 (emphasis added).

            As can be seen by the foregoing exchange, it is true that Turner did say in part that he would “go by what the professionals say.” But contrary to the State’s assertion, this was not the only consideration that Turner indicated he would take into account. “I guess you just would have to go by what the professionals say and kind of interpret all the facts and take it all in” including the facts surrounding the crime and information about the defendant’s history of mental illness. Tr. at 78. And the State is incorrect in its assertion that Turner responded, “Well, I’d just go with the doctors. I’d just go with the doctors.” This mischaracterization of Turner’s voir dire testimony is troubling and undermines the State’s proffered race-neutral reason for the strike. See Miller-El, 545 U.S. at 244. In addition, although the State initially had passed the venire for defense questioning, once Turner made statements the State contends were of concern, the State made no effort to examine him further. And this is so in spite of the trial court advising the parties it would allow flexibility concerning the usual time limit allowed for voir dire because, “the issue of insanity might develop a lot of side issues.” Tr. at 9. As the Supreme Court has observed, “’[t]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.’” Miller-El, 545 U.S. at 246 (quoting Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000)).

            Just as important, the record supports Addison’s contention that non-African American venirepersons on the same panel on which juror Turner served gave answers strikingly similar to those given by Turner and were not peremptorily challenged.  . . . .

            . . . .

            We see little distinction between the responses given by venirepersons Copelen and Weber and those given by venireperson Turner. Although phrasing their responses slightly differently  [footnote omitted] all three noted the importance of expert witness testimony on the question of insanity, and all three agreed that additional evidence should be considered as well. But Turner was stricken and Copelen and Weber were not. In essence the same rationale offered by the State to remove Turner applied equally to jurors Copelen and Weber. We reiterate the Supreme Court’s admonition, “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at 241. We recognize, as has the Supreme Court, that “a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable.” Snyder, 552 U.S. at 483.

            Here, however, not only does an examination of the record show that the State failed to strike apparently similarly situated non-black venirepersons, but also the State mischaracterized Turner’s voir dire testimony when offering its race-neutral reason for striking him from the panel and failed to engage Turner in any meaningful voir dire examination on the issue of his reliance on expert witness testimony. Considered individually or in isolation, these factors likely would not be sufficient under our fundamental error standard of review to undermine the State’s claim that its reason for striking Turner was race-neutral. As we have noted, the fundamental error exception is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.”  . . . .

            The State’s mischaracterization of Turner’s voir dire testimony, its failure to engage Turner in any meaningful voir dire examination to explore his alleged undue reliance on the testimony of professionals, and the comparative juror analysis, when taken collectively, leave us with the firm impression that the State’s proffered explanation for striking venireperson Turner was a mere pretext based on race, making a fair trial impossible. “Peremptory challenges based on race . . . require a retrial.” Highler, 854 N.E.2d at 826.  [Footnote omitted.]

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.

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Vaidik, J.

Case Summary

In keeping up with the proliferation of the internet and social media, news organizations allow readers to both read and comment on their stories online. While this practice facilitates discourse between readers and interaction with their online news products, it also opens the door to potentially objectionable material, as readers are allowed to post comments anonymously, hiding behind a pseudonym. This case addresses whether a non-party news organization can be compelled to disclose to a plaintiff who has filed a defamation lawsuit the identity of one such anonymous commenter. In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law, which provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment, the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” according to Indiana Code section 34-46-4-2. Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter’s identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.

….

In this issue of first impression in our state, The Star raises three main defenses that it claims protect it from being compelled to disclose the identity of “DownWithTheColts”: (1) Indiana’s Shield Law; (2) the First Amendment right to anonymous speech; and (3) Article 1, Section 9 of the Indiana Constitution. The amici curiae in this case focus their briefs on issue two, anonymous speech under the First Amendment.

Miller argues that the identity of “DownWithTheColts” is essential to his defamation claim because without the identity, he has no means to identify the anonymous commenter and hold him accountable for his malicious defamation on indystar.com. This requires us to carefully balance the rights of Miller to seek redress for injury, The Star’s right not to disclose the identity of the anonymous commenter “DownWithTheColts” under our Shield Law, and the right of “DownWithTheColts” to speak anonymously.

The rules of discovery are designed to “allow a liberal discovery process, the purposes of which are to provide parties with information essential to litigation of the issues, to eliminate surprise, and to promote settlement.” Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997), reh’g denied, trans. denied. Our review of discovery matters is limited to determining whether the trial court abused its discretion. Bridgestone Ams. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind. 2007). An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or if the trial court has misinterpreted the law. Id.

I. Indiana’s Shield Law

The Star first contends that Indiana’s Shield Law protects it from being compelled to disclose the identity of the anonymous commenter, “DownWithTheColts.”

Traditionally, a newsgatherer, in the absence of a statute or court rule to the contrary, has no privilege to conceal and may be compelled to disclose in a legal proceeding before a court, grand jury, or other governmental bodies the confidential information or the identity of a confidential source of information obtained by him in his professional capacity. Romualdo P. Eclavea, Annotation, Privilege of Newsgatherer Against Disclosure of Confidential Sources or Information, 99 A.L.R.3d 37 (Supp. 2011). “Neither the common law nor the United States Constitution give a newsperson a privilege to refuse to disclose the identity of a person, or ‘source,’ who gave the newsperson information.” [Footnote omitted.] 12 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 501.582 (3rd ed. 2007) (footnotes omitted).

This common-law rule of disclosure, however, has been abrogated or modified in some states by the enactment of statutes commonly known as “shield laws.” Eclavea, 99 A.L.R.3d 37 (footnote omitted). To date, approximately thirty-nine states and the District of Columbia have enacted reporter shield laws. See Joshua A. Faucette, Note, Your Secret’s Safe With Me . . . Or So You Think: How the States Have Cashed in on Branzburg’s “Blank Check,” 44 Val. U. L. Rev. 183, 187 n.31 (2009) (listing thirty-five states plus District of Columbia); State Shield Law Statutes, Media Law Resource Center, http://www.medialaw.org/Template.cfm?Section=State_Shield_Law_Statutes (last visited Nov. 17, 2011) (listing four additional states that have since adopted shield laws); see also Martin et al., 16 Comm. L. & Pol’y at 105 n.90. These laws generally grant newsgatherers the privilege – of varying breadth or nature – not to disclose in a legal proceeding the information or the source of information obtained by them in their professional capacity. Eclavea, 99 A.L.R.3d 37; see also 81 Am. Jur. 2d Witnesses § 526 (2004) (“In some jurisdictions, a statutory ‘shield law’ provides those who collect, edit, or publish news at least a qualified privilege in a legal proceeding or investigation from disclosing the source of any information obtained by him or her.”). Federal law has no statutory equivalent to the various states’ shield laws. Too Much Media, LLC v. Hale, 20 A.3d 364, 374 (N.J. 2011). The extent of a newsperson’s privilege under federal law derives from the First Amendment, id., and the anonymous speech aspect of the First Amendment is addressed later in this opinion.

Indiana’s Shield Law is codified at Indiana Code chapter 34-46-4 (formerly Indiana Code chapter 34-3-5). Our Shield Law has only two sections. Specifically, Indiana Code section 34-46-4-2 provides:

A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

(1) published or not published:

(A) in the newspaper or periodical; or

(B) by the press association or wire service; or

(2) broadcast or not broadcast by the radio station or television station;

by which the person is employed.

(Emphasis added). The other section, Indiana Code section 34-46-4-1, in turn, provides that the chapter applies to:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bone fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news.

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

This privilege is in derogation of the common law and must be strictly construed. Miller, § 501.82.

This statute has never been construed in the context presented in this case. Indeed, a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. Fuller v. State, 752 N.E.2d 235, 237 (Ind. Ct. App. 2001). In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. Id. at 237-38. When interpreting the words of a single section of a statute, we must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. Id. at 238. We presume that the legislature intended its language to be applied in a logical manner consistent with the statute’s underlying policy and goals. Id. Courts are not bound to adopt a construction that would lead to manifest absurdity in order that the strict letter of the statute may be adhered to. Id. They will rather look to the intention of the legislature, as gathered from the import of the whole act, and will carry out such intention as thus obtained. Id.

Our Shield Law was first enacted in 1941. Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243, 1247 n.2 (Ind. Ct. App. 1984), overruled on other grounds by Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Hestand v. State, 257 Ind. 191, 273 N.E.2d 282, 283 (1971) (listing legislative history of Indiana’s shield-law statute up to that point, starting in 1941). Before the 1973 amendment and 1998 recodification that produced the statute in its present form, the privilege was “far more restrictive” regarding who was covered by the statute. Miller, § 501.582. That is, the privilege could be claimed only by those whose principal income was associated with news. Id. The privilege was available only to those associated with licensed broadcasting stations or newspapers published at least tri-weekly for five consecutive years in the same city or town with a paid circulation of at least two percent of the county in which it was published. Id.

Despite the Shield Law’s lengthy existence in our state, there is very little Indiana case law on the statute. And what case law we have is not current. In one of these cases, Jamerson, a former police chief sued Anderson Newspapers, Inc. and a reporter from The Anderson Herald for a series of articles which the chief considered to be defamatory.

The chief later filed a motion to compel the newspaper and the reporter to reveal their unnamed sources. The defendants refused, asserting the Shield Law as a defense. A bench trial was held, and “judgment was entered that [the chief] take nothing in the action.” Jamerson, 469 N.E.2d at 1245.

On appeal, we said that “our shield law . . . confers, without a doubt, an absolute privilege on the news media.” Id. at 1246. As support, we cited the following language from the statute, “Any person . . . connected with a newspaper . . . shall not be compelled to disclose in any legal proceeding or elsewhere the source of any information procured or obtained in the course of his employment . . . .” Id. Therefore, while Indiana’s privilege is indeed absolute, it is only absolute to the extent a source is involved. This was no doubt the case in Jamerson.

At the time of Jamerson in 1984, we noted that Indiana was one of eight states that had what was described as the “ultimate” in news media protections; that is, the press had “a seemingly unassailable privilege not to disclose the source of any information obtained in the course of employment.” Id. at 1248 (footnote omitted); see also Faucette, 44 Val. U. L. Rev. at 198 n.68 (now listing Indiana as one of ten states with an absolute privilege).

Both parties agree that no Indiana appellate court has had the occasion to address the Shield Law in the context of an anonymous commenter to an online news article. [Footnote omitted.] Appellant’s Br. p. 11 n.5; Appellee’s Br. p. 26. This, however, is about the only point the parties agree on.

While the parties’ and our own research have revealed that other states have addressed their shield laws in the context of anonymous commenters to online news articles, these decisions are predominantly trial court orders, not appellate opinions. See, e.g., Appellant’s Br. p. 11 n.5 (citing trial court orders); Appellee’s Br. p. 26-28 (citing trial court orders); see also Kirtley, 94 Minn. L. Rev. at 1494-99 (discussing trial court orders in several states).

Specifically, “in seven recent cases in state courts in which litigation parties or investigators have sought the identities of newspaper Web site commentators, news organizations and judges have turned to laws designed to protect journalists’ confidential sources.” Martin et al., 16 Comm’n L. & Pol’y at 91. And in six of those seven cases, the judges agreed that those identities met the shield laws’ definitions of “information” protected by the laws. Id. at 111.

We now turn to the parties’ arguments on our Shield Law. The crux of their arguments is who and what the Shield Law protects. At oral argument, The Star argued that the Shield Law protects any comment to an article on a newspaper’s website, even if the comment was unrelated to the story and falsely accused someone of murder, because the Shield Law protects even defamatory speech. On the other hand, Miller argues that “The Star may not invoke the Shield Law because the reader who commented online is not a ‘source’ and this reader’s identity was not ‘procured’ or ‘obtained’ by an individual in an editorial or reportorial role for The Star.” Appellee’s Br. p. 14. The parties focus on the individual language of the statute to make their respective arguments.

Initially, Miller argues that The Star has waived the Shield Law privilege because of its Privacy Notice. Miller also argues that by posting a comment on The Star’s website, “DownWithTheColts” acknowledged and agreed that The Star could release information to “respond to claims that any content or materials submitted by you violate the rights of third parties.” Terms of Service, The Indianapolis Star, http://www.indystar.com/section/terms (last updated Jan. 21, 2011). But these arguments by Miller overlook the fact that Indiana’s privilege is personal to the newsperson and must be claimed by the newsperson, not the source. Jamerson, 469 N.E.2d at 1246; Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. Ct. App. 1984); see also Miller, § 501.582. The Star’s Privacy Policy merely warns users that their information can be released, not that it will be released. And here, The Star has clearly chosen to keep the identity of “DownWithTheColts” confidential. The Star did not waive its privilege.

Although the parties make several arguments on appeal, this case boils down to whether “DownWithTheColts” is “the source of any information.” [Footnote omitted.] See I.C. § 34-46-4-2 (“A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper . . . .” (emphasis added)).

“Source” is not defined in the statute as it has been in other states’ statutes. See, e.g., Del. Code Ann. Tit. 10, § 4320 (West 1999) (“‘Source’ means a person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter.”); 735 Ill. Comp. Stat. Ann. 5/8-902 (West 2003) (defining source to mean “the person or means from or through which the news or information was obtained”).

Source in the journalistic world is a term of art meaning a person, record, document, or event that gives information to a reporter in order to help write or decide to write a story. See The Wall Street Journal, Terms in Journalism (1997), http://info.wsj.com/college/glossary/journalism.pdf (defining “source” as “Person, record, document or event that provides the information for the story.”).

Here, the anonymous commenter wrote his comments on the website only after The Star’s article was published and not during the newsgathering process. Importantly, there is no evidence that The Star used this anonymous post in any way to further investigate and report on its initial story. The Star merely provided a place for “DownWithTheColts” to place his comment similar to if The Star had placed a bulletin board outside of its office building for anyone to tack an announcement. For this reason alone, we determine that the anonymous commenter was not a source as envisioned by our Shield Law. At least one trial court has found the same. See Martin et al., 16 Comm’n L. & Pol’y at 111 & n.130 (citing Illinois trial court order in Alton Telegraph v. Illinois, No. 08-MR-548 (Ill. Cir. Ct. May 15, 2009)).

Furthermore, looking to the statute as a whole, we believe that this outcome is consistent with our legislature’s intent. The statute protects only the “the source of any information.” The information from the source must be “procured or obtained in the course of the person’s employment or representation of a newspaper.” I.C. § 34-46-4-2. The person who obtains the information is not any person in the news bureau but rather must be “a bona fide owner, editorial or reportorial employee.” Id. § 34-46-4-1. This language as a whole evinces a legislative intent to protect that information received by a person with editorial or reportorial functions who then uses those functions to evaluate in some way the information before deciding whether to disseminate it to the public.

Our legislature, like other legislatures, enacted our Shield law to ensure “public interest in the free flow of information through the press.” 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5426 (1980) (emphasis added). To be sure, the free flow of information is vital, but that free flow is balanced by reasonable assurances that the information is reliable because it is sifted through and scrutinized by professional journalists. Indeed, “[p]rofessional integrity is the cornerstone of a journalist’s credibility.” Society of Professional Journalists, Code of Ethics (1996), available at http://www.spj.org/pdf/ethicscode.pdf. “[J]ournalists should be honest, fair and courageous in gathering, reporting and interpreting information.” Id. When doing so, they must test the accuracy of the information from all sources and identify sources where feasible as the public is entitled to know as much information as possible on sources’ reliability. Id. No such evaluation of the information from “DownWithTheColts” was done here by any reporter, editor, or owner of The Star. As a result, there is no protection provided by our Shield Statute.

Edward Wasserman, the Knight Professor of Journalism Ethics at Washington and Lee University, believes that protecting anonymous commenters is a “bad idea.” Kirtley, 94 Minn. L. Rev. at 1479. Wasserman posits that “anonymous posters are nothing like confidential sources”:

[N]ews organizations know who their confidential sources are, and what their agendas and biases may be. They vouch for the credibility of their sources to their readers and viewers, and by relying on them, put their own credibility on the line. By contrast, the identities of posters are “truly unknown,” and “no one even tries to verify the information from the anonymous poster.” “[C]laiming for anonymous posters the protections that confidential sources deserve debases the currency, mak[ing] a whistleblower no different from a crank. As an ethical matter, it’s indefensible.”

Id. at 1480 (footnotes and quotations omitted).

Giving anonymous commenters all-out protection is indeed a “bad idea.” Extending an absolute privilege to anonymous commenters could actually work to undermine the privilege. See Kissinger & Larsen, 1068 PLI/Pat at 840-41. That is, the combination of shield-law protection for anonymous commenters and immunity under the CDA for website operators “could leave legitimately injured plaintiffs without a legal remedy.” Id. As a result, some “fear that state legislatures might seek to narrow shield laws to rebalance the poster’s and plaintiff’s competing rights, with the consequence being encroachment on the protection presently enjoyed by the press for keeping its more traditional sources confidential.” Id. at 840-41.

Strictly construing our Shield Law in a manner that looks to the language of the whole act and does not lead to manifest absurdity, we hold that to be considered “the source of any information,” one must provide information that is then interpreted by the news organization. But as The Star conceded at oral argument, the record does not show that it used the comment by “DownWithTheColts” in any way. Given the facts in this case, “DownWithTheColts” was not the source of any information as contemplated by the Shield Law because the story was already published when the comment was made and there is no evidence that The Star utilized the anonymous comment in carrying out its newsgathering and reporting function.

II. Anonymous Speech

The Star also contends that the First Amendment right to anonymous speech prevents it from having to turn over the identity of “DownWithTheColts.” Miller, however, argues that the comments made were defamatory per se and therefore ineligible for constitutional protection. Analyzing this issue requires us to balance the right of Miller to seek redress for his grievance against the anonymous speech right of “DownWithTheColts.”

A. Federal Constitution

Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”). Unlike our Shield Law, this protection is a qualified privilege that requires the balancing of other rights against the right to anonymous speech, most commonly the right to seek redress for an injury. [Footnote omitted.] See, e.g., McIntyre, 514 U.S. at 353 (balancing right to anonymity and right to protection from fraud).

Although raised by neither party, when a third-party entity, such as a newspaper, is subpoenaed to reveal the identity of an anonymous commenter who has used that third party as a forum for his anonymous speech, the third-party has standing to contest the subpoena under the principle of jus tertii. McVicker v. King, 266 F.R.D. 92, 95 (W.D. Pa. 2010). This is so because “the relationship between [the newspaper] and readers posting in the [n]ewspaper’s online forums is the type of relationship that allows [the newspaper] to assert the First Amendment rights of the anonymous commentators.” Enterline v. Pocono Med. Ctr., 751 F.Supp.2d 782, 786 (M.D. Pa. 2008). Further, courts have found that (1) anonymous commenters face practical problems contesting the subpoena themselves, as doing so would require them to reveal their identities; (2) newspapers involved in these types of cases have suffered an adequate injury-in-fact to meet Article III’s case or controversy requirements; and (3) the newspaper will zealously argue the issues before the court. See, e.g., McVicker, 266 F.R.D. at 96; Enterline, 751 F. Supp. 2d 26 at 786. As a result, The Star has standing to argue these First Amendment issues on behalf of “DownWithTheColts.”

Although free speech is vigorously protected, a statement will not be afforded constitutional protection if it is defamatory. See Ind. Const. art. 1, § 12 (“[a]ll courts shall be open; and every person, for injury done to him in his . . . reputation, shall have remedy by due course of law.”). There are two types of defamatory speech in Indiana: defamation per se and defamation per quod. Baker v. Tremco, 917 N.E.2d 650, 657 (Ind. 2009). In order to maintain an action for defamation per se, a plaintiff must first assert that the statement is false. See Ind. Const. art. 1, § 10. The plaintiff must then demonstrate “(1) a communication with a defamatory imputation; (2) malice; (3) publication; and (4) damages.” Baker, 917 N.E.2d at 657.

A statement is defamatory per se if it imputes “(1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or occupation; or (4) sexual misconduct.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007). However, it is not enough that the statement carry with it one of those four defamatory imputations; rather, it must “constitute ‘a serious charge of incapacity or misconduct in words so obviously and naturally harmful that proof of their injurious character can be dispensed with.’” Moore v. Univ. of Notre Dame, 968 F. Supp. 1330, 1334 (N.D. Ind. 1997) (quoting Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind. 1994), reh’g denied). The offensiveness of the statements cannot be determined by how the plaintiff views the statement; the defamatory nature must be present in the nature of the words without any additional facts or circumstances to give context. See id.; McQueen v. Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied; Levee v. Beeching, 729 N.E.2d 215, 220 (Ind. 2000) (remarks that principal was a “liar” and “favored some staff” were not defamatory per se because they required reference to previous personal attacks against the principal to gain their defamatory meaning).

Whether the anonymous post by “DownWithTheColts” is defamatory per se, however, is a question of law for the court to decide. Miller argues that the statement is defamatory per se because it imputes criminal conduct and/or misconduct in his profession or occupation. He says that because the post refers to the former president of Junior Achievement, Appellee’s Br. p. 17, and he was the president for fourteen years before the post, Appellee’s App. p. 30, the post was directed at him. The Star, on the other hand, argues that Miller is not the only former president of Junior Achievement and the post does not even mention him by name. See Lee v. Weston, 402 N.E.2d 23, 29 (Ind. Ct. App. 1980) (holding that “defamatory words are not actionable unless they refer to some ascertained or ascertainable person, and that person must be the plaintiff.”). Based on the facts, however, it is reasonable to conclude that the post was made in reference to Miller, and that it imputed to Miller criminal conduct (theft) and misconduct in his occupation. The statement therefore was defamatory per se.

If the plaintiff can show that the statement was in fact defamatory per se, he still needs to demonstrate publication, damages, falsity, and malice in order to maintain a successful defamation action. Kelley, 865 N.E.2d at 597. Publication has clearly been established in this case. Additionally, damages may be presumed in an action for defamation per se “‘as a natural and probable consequence’ of the per se defamation.” Id. (quoting Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind. Ct. App. 1992), reh’g denied, trans. denied). However, while Miller has alleged in his complaint that the statement made was false, he has yet to provide any proof of this assertion, which is necessary for his defamation claim to move forward.

In regards to malice, Indiana has adopted an “actual malice” standard in defamation for both private and public plaintiffs in matters of public concern. Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind. 1999). The culinary school project was a matter of public concern, so Miller must show by clear and convincing evidence that the defendant published the defamatory statement “‘with knowledge that it was false or with reckless disregard of whether it was false or not.’” Id. at 456 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Since the comment at issue was anonymous, it will be impossible for Miller to make a showing of actual malice under Indiana law without the commenter’s identity.

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. Different states have adopted a variety of standards in addressing this issue, and there has yet to be an opinion from the Supreme Court of the United States to settle this issue.

Despite the inconsistency, two relatively similar standards for revealing the identity of an online commenter have emerged as the most commonly used across the country. Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132 (D.D.C. 2009). Those two standards are the Dendrite standard and the Cahill standard, and both require that the plaintiff provide some proof of his defamation claim before the anonymous speaker is revealed. See Martin et al., 16 Comm. L. & Pol’y at 95.

The Dendrite test comes from the 2001 New Jersey case of Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). In Dendrite, anonymous commenters made defamatory comments about the financial state of Dendrite International on a Yahoo! message board following the release of its Quarterly Report. Id. at 762. Dendrite sought an order to show cause why it should not be granted leave to conduct limited discovery to determine the true identities of the anonymous commenters. Id. at 763. The trial court allowed limited discovery to determine the identities of two of the four commenters. Dendrite appealed the order in regards to one of the commenters for whom discovery was denied. Id. at 764.

In making its decision, the court announced a four-part test that balanced the defendant’s First Amendment rights with the plaintiff’s reputation rights. In order to ascertain the identity of an anonymous online commenter, the plaintiff must: (1) notify the anonymous commenter via the website on which the comment was made that he is the subject of a subpoena or application for an order of disclosure and allow him time to oppose the application or subpoena; (2) identify the exact statements he believes to be defamatory; and (3) produce prima facie evidence to support every element of their cause of action before the disclosure of the commenter’s identity. Id. at 760. If the plaintiff can satisfy all three of those factors, then the trial court must (4) “balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Id. at 760-61.

In addition to Dendrite, the other test that has been frequently adopted is the Cahill test. This test was articulated in a 2005 Delaware Supreme Court case and is a modification of the Dendrite test. Doe v. Cahill, 884 A.2d 451 (Del. 2005). In Cahill, a city council member sued four defendants who anonymously posted allegedly defamatory comments on a blog. Id. at 454. In an effort to serve process upon one of the commenters, Cahill sought an order from the trial court to require the owner of the IP address to reveal the commenter’s identity, and the anonymous commenter immediately filed an emergency motion for a protective order. Id. at 455. The trial court applied a good-faith standard and granted Cahill’s order. Id. (good-faith standard required Cahill to establish (1) that he had a legitimate, good-faith basis upon which to bring the claim; (2) the identifying information was directly and materially related to the claim; and (3) he could not obtain the information from any other source). The anonymous commenter appealed, claiming the standard used was not protective enough of his First Amendment right to free speech. Agreeing with the anonymous commenter and finding a need to better balance the protection of anonymous speech against defamatory speech, the Delaware Supreme Court reversed and adopted a modified version of the Dendrite test. Id. at 460-61.

In making its ruling, the Delaware Supreme Court found that the good faith standard was too lenient and could “chill potential commenters from exercising their First Amendment right to speak anonymously.” Id. at 457. The court decided on the summary judgment standard but distinguished its standard from the Dendrite standard. Id. at 460. Specifically, the court adopted a modified Dendrite standard consisting only of Dendrite requirements one and three: the plaintiff must make reasonable efforts to notify the defendant and must present enough evidence to withstand a summary judgment motion. Id. at 461. The court found the second and fourth Dendrite factors unnecessary: the second prong, setting forth the alleged defamatory statements, was part of the summary judgment inquiry of the third prong, and the fourth prong of balancing interests was also inherent in the summary judgment inquiry and added no additional protection. Id

After reviewing these tests, we find that the test that draws the most appropriate balance between protecting anonymous speech and preventing defamatory speech is the Dendrite test. This test contains the two elements that we find most important in deciding this issue: a summary judgment standard and a balancing of interests. The summary judgment standard is highly protective of speech and balancing the right of the injured party to seek redress against the anonymous speech rights ensures that no party’s rights are unnecessarily infringed. Factors that the trial court should consider in balancing the parties’ rights include “the type of speech involved, the speaker’s expectation of privacy, the potential consequence of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party’s position, and the availability of other discovery methods.” [Footnote omitted.] Mobilisa, Inc. v. Doe, 170 P.2d 712, 720 (Ariz. Ct. App. 2007). We also note that this is the test that the amici urge us to adopt. See Amicus Br. of Lee Enterprises p. 14; Amicus Br. of Public Citizen p. 19.

However, Indiana’s defamation per se law presents a particular challenge because the plaintiff must prove actual malice. Such proof of actual malice would be impossible without identifying the commenter. Thus, a pure Dendrite test is not workable in Indiana. We therefore adopt Dendrite but modify it as was done in Mobilisa and require the plaintiff to produce prima facie evidence to support only those elements of their cause of action that are not dependent on the commenter’s identity. 170 P.3d at 721. Therefore, prima facie evidence of actual malice is not required.

We remand this back to the trial court with instructions to apply the modified version of Dendrite to the facts of this case to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”

B. Indiana Constitution

The Star further argues that the strong protection afforded to speech in Indiana requires reversal in this case because “the chilling effect of the disclosure of anonymous speakers’ identities cannot be countenanced.” Appellant’s Br. p. 20. Miller, however, again argues that the comment posted by “DownWithTheColts” is defamatory per se, denying it constitutional protection and requiring the disclosure of the commenter’s identity.

We recognize that the Indiana Constitution “‘more jealously protects freedom of speech guarantees than does the United States Constitution.’” Mishler v. MAC Sys., Inc., 771 N.E.2d 92, 97 (Ind. Ct. App. 2002) (quoting Lach v. Lake Cnty., 621 N.E.2d 357, 362 n.1 (Ind. Ct. App. 1993), trans. denied). The newsroom is a place where free speech has been particularly protected. In In re WTHR-TV, our Supreme Court stated “[w]here a media organization is subpoenaed, the Trial Rules require sensitivity to any possible impediments to press freedom. A showing that the information is unique and likely not available from another source should normally be required.” 693 N.E.2d 1, 9 (Ind. 1998).

However, we adopt the modified Dendrite test as discussed above to determine whether Miller may obtain the identity of “DownWithTheColts” under the Indiana Constitution. While Indiana gives more protection to speech than does the federal constitution, this modified version of the Dendrite test has been called “likely the most speech protective standard in cases where defamation plaintiffs seek access to an anonymous online speaker’s identity.” Martin et al., 16 Comm. L. & Pol’y at 99. With neither party advocating a different test that would comport with Indiana’s “jealous protection” of speech, we instruct the trial court to apply the same version of Dendrite as modified by Mobilisa to the facts of this case under the Indiana Constitution to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”

Reversed and remanded with instructions.

FRIEDLANDER, J., and DARDEN, J., concur

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