Continued Anonymity of Weebly Blogger May Be Wobbly

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The Michigan Court of Appeals for the Fourth District heard arguments this week in Thomas Cooley Law School v. John Doe (Case No. 307426) in which a former law student turned anonymous blogger asked for a reversal on First Amendment grounds of a trial judge's refusal to quash a subpoena seeking the blogger's identity.

According to a report by Reuters, the former Cooley student and other commenters in a blog post in July 2011, challenged the validity of employment statistics released by the Michigan-based independent law school, labeling the job-placement data as "criminal" and a "fraud." The school, claiming it was defamed by the blog item, subpoenaed California-based Internet Service Provider Weebly for information identifying the blogger.

The blog author asked a Michigan court to quash the subpoena, but the trial judge ruled the use of the words "criminal" and "fraud" was not protected speech under the First Amendment and held that Cooley would not have to meet the elevated burden of proof of actual malice to sustain its defamation claim against the blogger.

In the interim, Weebly coughed up the requested information to Cooley, purportedly consistent with its terms of service with "John Doe," and the law school identified the blogger in a court filing. The California judge, however, stayed the proceedings in the California defamation case pending the outcome of the blogger's interlocutory appeal in Michigan, according to the Reuters article.

The blogger's attorney argued before the Michigan appellate court that in determining the proper rule for disclosure of an anonymous blogger's identity, the state should adopt a developing consensus standard, similar to what a New Jersey court articulated in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity.

Cooley counters that Michigan law does not require evidence of the likelihood of success of its claims on the merits before allowing it to obtain discovery. The former Cooley student-turned-defendant is still getting a legal education, but not the one he bargained for.