The Court of Appeals issued an opinion in Thomas M. Cooley Law School v. John Doe 1 today.
In this published opinion addressing an issue of first impression in Michigan, the Court of Appeals in a split opinion (2-1) (Whitbeck, J. and Meter, J. in the majority and Beckering, J. in a partial dissent) held the trial court erred in the manner it analyzed whether to issue a protective order to maintain anonymity for a blogger who posted commentary criticizing Thomas M. Cooley Law School (the Plaintiff).
The Plaintiff filed a defamation suit against the defendant, a former law student, in Ingham County Circuit Court. The Plaintiff sought a subpoena from a California court (the location of the defendant’s domicile) to have the company Weebly.com (the company owning the website where the criticism was posted) disclose the defendant’s identity. The California court issued the subpoena. The company refused to do reveal defendant’s identity until the trial court had ruled on the defendant’s motion for a protective order, or, alternatively to quash the subpoena. However, an employee of the company inadvertently disclosed the defendant’s identity. The trial court found the motion to quash the subpoena to be moot, but did issue a protective order and sealed the court pleadings pending the decision by the Court of Appeals on the interlocutory application.
The majority concludes the trial court erred in applying law from other states, but affirms that the protective order was appropriate. The majority holds that Michigan rules of discovery coupled with Michigan’s summary disposition standards adequately protect a defendant’s first amendment rights to remain anonymous pending a defamation suit. The majority noted it would not judicially create anti-SLAPP legislation, as that was best left to the Legislature. SLAPP stands for “strategic lawsuits against public participation”. See Slip Op. p. 7, n. 42 (Beckering, J., concurring in part and dissenting in part).
Judge Beckering disagrees with the majority’s ruling that Michigan law adequately protects a defendant’s rights in this situation. She notes if, as the Michigan Court Rules allow, a plaintiff can commence discovery as soon as a lawsuit is filed and potentially learn a defendant’s identity before the defendant even knows of the lawsuit, the defendant’s identity could be revealed before he or she has an opportunity to seek a protective order. Judge Beckering argues that formal procedures should be adopted to accommodate for this modern situation involving internet blogging, anonymous postings, and freedom of speech under the state and federal constitutions. Slip Op. at 1-2 (Beckering, J. dissenting).
She points out that while it may be best for the Legislature to adopt legislation (over half of the states have already adopted some form of legislation addressing these issues), there is no reason the Court of Appeals cannot create a hybrid procedure using other state case law and the rules of procedure in Michigan.
This is a split, published opinion addressing an issue of first impression in Michigan. It was also addressed, understandably, in an interlocutory appeal. I am certain that the Michigan Supreme Court will soon be asked to address this case, and it may actually be done before the end of this term given the policy issues involved and the pending lawsuit.
There is much to this opinion. This blog does not and cannot do it justice, so I would urge anyone interested in this area of the law to read the opinion. It very thoroughly discusses the current case law and the various theories throughout the United States, which have been adopted in an effort to balance the interests of plaintiffs seeking to redress defamatory speech and defendants seeking to remain anonymous when within their rights under the first amendment.
Another interesting aspect of this is Michigan’s constitutional provision protecting free speech. It contains a much more modern articulation of the freedom of speech as a constitutional right than the First Amendment to the U.S. Constitution; and, arguably, might be sufficient to realize the just result in these types of cases. Mich. Const. 1963, art. 1, § 5 provides: “Every person may freely speak, write, express and publish views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech….” Again, this is a modern articulation, being placed in the 1963 Constitution, but certainly it provides very powerful language to accommodate current situations pertaining to blogging, anonymous criticism on the internet, and the like.