Online Comments as Evidence

By Beacon Staff

One by one, seven witnesses took the stand in Flathead County District Court and swore to tell the truth about comments they had written anonymously online.

Sam Dickson, a Flathead County deputy sheriff, was one of them. He told the court at the Sept. 15 hearing that he found the case accusing Evergreen teenager Justine Winter of double homicide upsetting. So he typed his feelings under a nickname on the Daily Inter Lake’s website. It was cathartic, he told Winter’s defense attorney, David Stufft.

“I don’t have any other hobbies,” Dickson said. “I blog, that’s how I vent. I think that’s why everybody blogs, because they can do it in secrecy.”

“And you learned it doesn’t work that way,” Stufft said.

“Yes,” Dickson answered.

Neither Dickson nor the other witnesses were on trial for the content of their comments, but their testimony was entered as evidence in a hearing to determine whether Winter’s upcoming criminal trial should be moved.

Winter, 17, is accused of intentionally driving her vehicle across the U.S. Highway 93 centerline between Whitefish and Kalispell on March 19, 2009, and crashing into a northbound vehicle and killing Erin Thompson, 35, and her son, Caden Odell, 13.

According to court records, Winter sent her boyfriend several text messages less than an hour after dropping him off at home, including: “Good bye… My last words…,” and “If I won. I would have you. And I wouldn’t crash my car.”

Investigating officers concluded that Winter crossed the centerline in a suicide attempt, and she was charged with two counts of homicide.

Winter’s defense counsel claims she will not receive a fair trial in Flathead County, partially because the Inter Lake’s stories on her case and the comments written online in response to them have tainted the jury pool. The prosecution rejected these claims, saying the newspaper’s coverage has been fair and objective, and that comments made on its stories do not represent all of Flathead County.

District Court Judge Katherine Curtis has yet to rule on the matter and several other motions filed by the prosecution and defense. But the case took an unprecedented turn once the commenters took the stand.

As readers increasingly turn to the Internet for their news, media companies have labored to adapt to the ever-changing digital landscape. But last week’s testimony appears to be the first time in Montana that anonymous comments made on a newspaper’s website progressed to a real-world, courtroom interaction for the authors.

In August, Stufft subpoenaed the Inter Lake for the registration information of the people who comment on its site. This is not the first time a newspaper in Montana has received such a subpoena; newspapers in Billings and Bozeman have faced similar requests in the past two years.

According to court records, the Inter Lake did not file a motion to quash the subpoena, and the Internet protocol (IP) addresses, names and e-mail addresses of multiple online users are now part of the case file, which is public.

On Sept. 9, Stufft filed more subpoenas in the case, this time calling for at least seven commenters, one letter writer and the Inter Lake’s editor and publisher to appear at the Sept. 15 change of venue hearing.

The Inter Lake’s attorney, Mike Meloy, filed a motion on Sept. 13 to quash the subpoenas for publisher Rick Weaver and editor Frank Miele, as well as feature editor and reporter Lynette Hintze in the event she is served a subpoena.

None of the newspaper’s staff appeared as witnesses at the Sept. 15 hearing. When reached by phone last week, Weaver said, “I have no comment at this time.”

Meloy’s motion is based on Montana’s Media Confidentiality Act, otherwise known as the shield law, which protects the media from being forced to reveal sources or information gathered during its course of business.

In 2008, District Court Judge Todd Baugh in Billings ruled that protection could also be extended to the authors of anonymous comments made on a media website. In that case, Russ Doty, a candidate for the Public Service Commission race in 2004, requested user information from the Billings Gazette as part of his civil lawsuit against Brad Molnar.

Doty sought the information to prove his claim that Molnar had allegedly libeled him and damaged his reputation within the community. He claimed some commenters on the Gazette’s website would be worthwhile witnesses in the civil case, and may even be Molnar himself.

The Gazette fought the request, and its attorney wrote that the Media Confidentiality Act protected the information Doty sought, since it states the media cannot “be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of … its business.”

Baugh agreed with the Gazette, which was not a party in the case, and made a bench ruling granting shield law protection for anonymous commenters.

A commenter, however, cannot invoke the shield law on his or her own, according to Clem Work, a media law professor at the University of Montana’s School of Journalism, who said the news organization would have to do it for them.

A media outlet is not required to resist subpoenas, Work noted, though he said he was unsure why the Inter Lake would choose not to use the shield law available in Montana.

Winter’s case, however, differs from the Billings and Bozeman cases in that it is criminal, not civil. And on the Inter Lake’s website a user must first register to post comments on a story, which includes agreeing with the site’s terms and conditions of use, part of which read: “The Administrator may use the information it obtains relating to you, including your IP address, name, mailing address, e-mail address and use of the Site, for his internal business and marketing purposes.”

Work also noted that one district judge’s ruling does not set precedent the way a Supreme Court ruling would, and a judge in another district could rule differently.

Currently, no uniform shield law exists in the United States; each state has its own version or none at all. Montana’s shield law is very broad, Work said, based on the traditional beliefs of privacy and anonymity.

Judges in states such as Oregon, Florida and Texas have made rulings protecting anonymous identities on media websites as well. But news organizations in other states, such as Illinois and New Jersey, have been compelled to identify online users.

Meloy, who represented the Bozeman Daily Chronicle in 2009 when a Montana State University professor subpoenaed the newspaper’s online user registration, said in an interview last week it is not unusual for newspapers to get subpoenaed for information in Montana, but requesting anonymous comment information is relatively new.

At the Sept. 15 hearing, Winter’s attorney asked the witnesses if they had any personal knowledge of the March 19, 2009 crash, where they got their information and with whom they discussed their opinions on the case.

One witness, Wendy Forwoodson, said she only talked to her son about the case. He was a friend of Odell’s, she said, and added that she was “dumbfounded” she had been called to court over her online comments.

“I actually thought there was freedom of speech” and one could write what they wanted to, Forwoodson said.

Judge Curtis has yet to rule on the Inter Lake’s motion to quash the subpoenas. Winter’s trial is scheduled to begin on Nov. 8.

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