by Paul Alan Levy
The decision posted this morning by the Michigan Court of Appeals in Thomas Cooley Law School v. Doe is a victory for the Doe defendant, 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, Clinton Canady, was wrong to deny a protective order barring Thomas M. Cooley Law School from disclosing the name of a former student whom it had sued, alleging that harsh criticisms of Cooley on his blog, the Thomas Cooley Law School Scam, were defamatory. The majority opinion faults the trial judge for deciding that Michigan law does not require such a protective order, and for assuming that a public figure like Cooley is exempt from having to allege and prove actual malice simply because the 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 the protective order motion itself does not turn on whether an adequate complaint has been filed or the plaintiff has evidence to support its claims, a protective order can be granted barring disclosure of a defendant’s name while the anonymous defendant 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. And most troublesome is the majority’s deliberate refusal to address the notice requirement on which every other state appellate court has insisted, because otherwise an anonymous defendant may not know that a subpoena has been issued seeking his identifying information. Thus, while the Doe was well-protected in this case, that is only because Cooley Law School issued a press release announcing its defamation claims, enabling the Doe to file a motion to block the subpoena.
A powerful opinion by Judge Jane Beckering concurs in the decision to overturn the denial of anonymity protection and remand the case, but strongly disagrees with the reasoning, arguing that Michigan should embrace the approach taken by almost very 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.
No decision has yet been made whether to seek further review in the Michigan Supreme Court, in light of hints in the majority opinion that the Supreme Court might be the right Court to decide whether to adopt a specific rule to govern anonymity disputes about subpoenas.