UPDATE: Mich. App. Ct. Delays Law School Unmasking of Anonymous Blogger

Thomas M. Cooley (Photo credit: Political Graveyard)

In Thomas M. Cooley Law School v. John Doe 1 et al. (Case No. 30742628), the Michigan Court of Appeals for the Fourth District this week reversed and remanded a trial judge's refusal to grant a protective order to an anonymous poster critical of the independent law school's placement statistics.

The ABA Journal Law News Now blog reported about the appellate court's 28-page decision that concluded the trial court wrongly failed to address why it denied blogger Rockstar05's request for a protective order against the law school's subpoena seeking the blogger's identity. The appeals court ruling also found the trial court wrongly decided that the alleged per se defamatory statements regarding criminality were not subject to First Amendment protection.

Rockstar05, a purported former Cooley student, criticized the school on his blog on the Calif.-based Weebly Internet Service Provider in July 2011 (see "TUOL" post 12/14/12). The unnamed poster allegedly characterized Cooley's job placement data as "criminal" and a "fraud," and allegedly branded the institution a "diploma mill" and one of the nation's three worst law schools, thereby dashing any hopes of ever receiving a school spirit award.

Weebly already has coughed up the information the law school was seeking, but a California judge presiding over the defamation case stayed the release of that data and the California proceedings pending the outcome of Rockstar05's interlocutory appeal in Michigan.  The appellate ruling this week returns the case to the Michigan trial court for a new ruling on whether the defendant blogger may retain his anonymity.

The defendant has pushed for Michigan to adopt a standard akin to one employed by a New Jersey Superior Court 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.

Continued Anonymity of Weebly Blogger May Be Wobbly

(Photo credit: Wikipedia)

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.