In order to analyze this issue of first impression in our state, we consider ... 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.

2012 In re Indiana Newspapers

Rather, it would be not only unfair but an abuse of discretion for this court to exercise jurisdiction over an appeal in which we lack subject matter jurisdiction. The first principle of adjudication is that a court must have subject matter jurisdiction 

before it can address the merits of a case.This principle is not specific to these parties or this case.




And it is a familiar canon of statutory interpretation that statutes should be interpreted so as to resolve issues on constitutional grounds as a last resort. City of Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind.2006).


It is the duty of this Court to determine whether we have jurisdiction before proceeding to determine the rights of the parties on the merits.Rather, it would be not only unfairbut an

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 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 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)). 

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).

 abuse of discretion for this court to exercise











 jurisdiction over an appeal in which we lack subject



matter jurisdiction. The first principle of adjudication is that a court must have subject matter jurisdiction before it can address the merits of a case.This principle is not specific to these parties or this case