Court of Appeals Rules Michigan Court Rules Adequately Protect Anonymous Defendant’s First Amendment Rights to Free Speech in a Defamation Suit in which Defendant Seeks to Remain Anonymous and Refuses to Judicially Adopt Anti-SLAPP Legislation in Michigan

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 (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.

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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