Michigan Court Reverses Denial of Protective Order for Anonymous Critic of Cooley Law School

By on April 23, 2013

Earlier this month, a Michigan state appeals court ruled (PDF) that a former student who had strongly criticized Thomas M. Cooley Law School on his blog might be entitled to remain anonymous after the school sued him for defamation. The blog, titled "Thomas M. Cooley Law School Scam," lists disheartening statistics relating to the Michigan-based school and its graduates and aims "to bring truth and awareness to the students getting suckered in by this unethical, hypocritical, corporatized, and despicable excuse for a law school." FIRE is glad to see the court acknowledge the role that anonymity plays in citizens enjoying their right to free speech.

After initiating the suit against John Doe in a Michigan court, Cooley asked a California court to issue a subpoena to Weebly Inc., the blog’s California-based host company, so that Cooley would receive Doe’s personal information. Since Cooley announced the lawsuit on its website, Doe was able to file a motion to quash the subpoena or issue a protective order—in other words, to keep his identity private—revealed Doe’s identity to Cooley. Doe refused to withdraw his motion for a protective order, since a court could still prevent Cooley from sharing Doe’s information with others.

The trial court found that because "Doe 1 was notified and Cooley sufficiently alleged slander per se," Doe’s identity was not protected. The state appeals court disagreed, noting in its April 4 ruling that Doe’s statements—even the accusations of criminal activity—were not "automatically defamatory." Further, consideration of whether the speech was slander per se should not have been the basis for the trial court deciding whether Doe was entitled to a protective order with respect to his identity; essentially, the question of Doe’s ultimate liability and the question of Doe’s interest in anonymity are separate issues. The court therefore remanded the case in order for the trial court to again consider whether Doe may remain anonymous (or, at this point, whether Cooley must refrain from sharing Doe’s identity with anyone else).

Some free speech advocates, though, share the disappointment of Judge Jane Beckering, who wrote a concurring opinion in the case. She opined that the state of Michigan should go further and adopt clearer standards to ensure that anonymous speech is not chilled by the potential for a lawsuit. Perhaps most importantly, the defendant should be given notice of a subpoena and time to defend his anonymity before his name is released, in contrast to what happened in this case.

Indeed, the appeals court’s decision is a step in the right direction, but it could have been more protective of future defendants. Anonymous speech is critically important for people criticizing those in power, and many dissenters will censor themselves if they suspect the shelter of anonymity is uncertain.