In a case we first reported on in December, a judge in Madison County, Illinois ordered The Alton Telegraph newspaper to reveal the identity of two people who commented anonymously on the newspaper's web site.
A state prosecutor in Madison County had issued a subpeona to the Telegraph in October seeking the names of five people who had posted comments on a news story concerning a man who had been indicted for the murder of a five-year-old boy. The prosecutor claimed that the five people may have information relevant to the investigation. The paper sought to quash the subpoena, claiming primarily that the paper was protected by the state's shield statute because the commenters were "sources" as defined in by the law.
The judge, Richard L. Tognarelli, largely rejected the newspaper's "source" argument. While acknowledging that no Illinois appellate court had decided the issue, Judge Tognarelli said that in this case:
[I]t is clear that the "reporter" did not use any information from the bloggers in researching, investigating, or writing the article. In fact, none of the comments were written until after the article was published. Comments were then made between various bloggers, between themselves, without comment, input or discussion from the reporter. It would not appear that the bloggers were "sources" for the Telegraph news article.
The judge emphasized that the shield law ought not apply "to those individuals who voluntarily post information in a forum designed to elicit citizen's opinions in response to a newspaper article." (emphasis in original).
Finally, Judge Tognarelli held that even if the shield law applied, the state had met its burden, at least as to two of the commenters, of showing that the sources sought were "relevant" and that the state had "exhausted 'all other available sources of information.'" In particular, a detective who testified at the hearing on the motion to quash said that the state had interviewed more than 117 people and did not have the time or money to re-interview all of them to ascertain if they were one of the commenters.
Two of the five commenters identified in the original subpoena were found to have information that might be relevant, based on what they had said online. The remaining three did not appear to have relevant information, the judge said, and so the motion to quash was granted as to them.
While courts across the country have been increasingly willing to quash subpoenas seeking the identities of anonymous commenters in civil cases, there is far less case law concerning criminal matters. In March, we reported on the decision by a third-party company hosting a newspaper's comments section to comply with a request from prosecutors for the identiy of anonymous commenters who might have information relevant to a criminal investigation.
No decision has been made by the newspaper on whether to appeal the judge's ruling.