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April 5, 2013

Michigan Appeals Court Protects Anonymity of Online Critic, But Should Have Done More

Statement of Paul Alan Levy, Attorney, Public Citizen

Note: Levy represented Doe in this case.

The decision posted this morning by the Michigan Court of Appeals in Thomas Cooley Law School v. Doe is a victory for the anonymous critic, who gets the reversal that he sought, but is a mixed blessing for anonymous Internet speakers in future cases.

A unanimous Court of Appeals decided that the trial judge was wrong to allow Thomas M. Cooley Law School to disclose the name of a former student whom it has sued, alleging that harsh criticisms of the school on his blog were defamatory. The majority opinion faults the trial judge for deciding that Michigan law does not require a protective order and for assuming that a significant institution like Cooley is exempt from having to allege and prove actual malice simply because Doe had called its conduct criminal. Under the ruling, Doe will be able to seek to have the complaint dismissed either on its face or for lack of evidence to support the claim that his blog is defamatory. 

Equally important for future cases, the Court of Appeals made clear that an anonymous speaker’s First Amendment rights must be considered in addressing protective orders. The court indicated that the Dendrite and Cahill standards, which are applied in other states directly pursuant to the First Amendment, “largely overlap” with Michigan law, and that, although a request for a protective order does not turn on whether an adequate complaint has been filed or the plaintiff has evidence to support its claims, a protective order that would prevent disclosure of an anonymous critic’s name can be granted while the critic seeks to have the lawsuit dismissed.

For future cases, however, it is disappointing that the majority opinion, in its effort to avoid applying the Dendrite and Cahill standards directly, gave little guidance to trial courts about the standards under which anonymous speakers’ requests for protective orders should be decided by trial judges. Also troublesome is the majority’s refusal to address the requirement, adopted by every other state appellate court to address the topic, that the plaintiff suing a Doe defendant give notice of the suit before anonymity can be taken away. Without notice, an anonymous defendant may not know that a subpoena has been issued seeking his identifying information. Here, the law school critic learned of the lawsuit only because Cooley Law School issued a press release announcing it, which enabled Doe to go to court to block the subpoena.

A powerful opinion by Judge Jane Beckering concurs in the decision to remand the case but strongly disagrees with the reasoning, arguing that Michigan should embrace the approach taken by almost every other state that has addressed the issue and adopt clear standards to guide trial judges. Judge Beckering explains that Michigan’s existing rules require notice before subpoenas can be issued, and hence that appropriate First Amendment standards can be incorporated without any need to change the current rules.

We have not yet decided whether to petition further review in the Michigan Supreme Court, to seek a ruling that is more protective of First Amendment rights. The Court of Appeals is currently considering a second case on a similar issue, Ghanam v. Doe, which we will take into account in deciding how to proceed.

For more information about Public Citizen's work in this case, go here.


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