The Indiana Commons recently won a victory for free speech at the Marion County Superior Court, successfully defending against a frivolous lawsuit meant to intimidate publication staff and sources for engaging in standard news-gathering practices protected by the First Amendment as well as state and federal law. The result, while a positive development, emphasizes the need for further action to protect journalists from frivolous legal filings.
The Investigation
Earlier this year, The Indiana Commons made national headlines for an article about Indiana University-Purdue University Indianapolis inviting a ‘local BDSM expert’ to teach an introductory workshop to students, and was blacklisted by university administrators as a result.
This story led directly to a lengthy investigation into an underground sex club, IK Events, LLC, that appeared to be covering up evidence of criminal activity. The investigation led to Zionsville Community Schools firing one of their bus drivers who was involved and who confessed to a rape.
The investigation came full circle back to Indiana University when the Indiana Commons discovered that a prostitute and former business partner of the owner of IK Events was actively hosting what appeared to be sex parties across the city where some confessed to committing sexual assault. The Indiana Commons also discovered that the prostitute had an active relationship with an Indiana University IT administrator and a student.
The Lawsuit against The Indiana Commons
After the article was published, the student filed a frivolous protective order against the president of Collegiate Commons, Inc., despite the fact he never communicated with her in any format and went above and beyond to protect her privacy. She claimed that publishing the article, which simply stated the truth, constituted repeated harassment, among other false claims.
The president of Collegiate Commons, Inc. went above and beyond the standards of journalistic integrity to protect her privacy out of concern that she may have been a victim of sexual grooming by the prostitute and the IU employee, who may have violated IU policy. To be absolutely sure this was not the case, in accordance with ethical practices, an anonymous Title IX complaint was filed to ensure the university took proper care to protect the student from potential harm.
Retaliation for such complaints violates federal law and university policy.
During the three-hour hearing, the president of Collegiate Commons, Inc. represented himself against a four-person legal team.
Award-winning, veteran investigative journalist Clifton French acted as an expert witness and affirmed that Collegiate Commons, Inc. acted in accordance with the standards of journalistic integrity.
The student’s lawyer focused more on copyright concerns during the hearing, which were refuted, than the actual claims made in the petition. He is also an adjunct professor at Indiana University McKinney School of Law with a history of advocating for decriminalizing prostitution, and appears to have an account on the pornography website Fetlife including pictures inside a sex club that was connected with several people involved in the Indiana Commons’ investigation.
The lawyer also attempted to get the president of Collegiate Commons, Inc. to name the whistleblowers that contributed to the article, which he refused to do out of concerns for their safety in accordance with Indiana’s Shield Law.
The judge dismissed the frivolous petition at the end of the hearing and ruled in favor of Collegiate Commons, Inc., reaffirming their use of the freedom of the press did not meet any standard to be considered harassment.
A Legal Tactic to Destroy Free Speech
French, who is currently reporting for Real News Michiana, has been subject to such petitions on several occasions, simply for asking for comment from the subjects of several news articles, including public officials and felons.
[RELATED: Real New Michiana recounts the case]
Earlier this year, a local political candidate in Georgia threatened a journalist with a restraining order for accessing a public document.
Last year, an Arizona state senator filed for a restraining order against an Arizona Capitol Times reporter for talking to her neighbors and asking if she lived in the area.
A few years ago, a towing company filed for a restraining order against a journalist for refusing to take down a story that exposed their potential predatory towing practices.
Every petition was eventually dismissed, but not without a cost, reducing the efficacy of the First Amendment and a free press.
At the end of the day, a journalist may successfully defend against these protective orders, if they are properly notified and able to show up to a hearing on time, but their potential use may be enough to keep journalists and whistleblowers quiet.
Anti-SLAPP (strategic lawsuits against public participation) laws currently protect journalists in Indiana from frivolous lawsuits, but the growing abuse of protective order petitions as a form of lawfare suggests that action should be taken to extend SLAPP laws to cover protective order cases.