Appeals Court Protects Anonymity Of Critics Of Cooley Law School, But Could Have Done More
from the it's-a-step,-but-a-small-one dept
We’ve written a few times about the infamous Thomas M. Cooley Law School, more famous for its terrible reputation and its own “ranking” system to try to hide that terrible reputation than for producing any decent lawyers. A few years ago, we wrote about the law school suing a former student, who was criticizing the school via an anonymous blog. Bizarrely, a district court allowed the school to unmask the blogger. Thankfully, however, an appeals court has now reversed the lower court ruling and said that the blogger has a right to anonymity.
A unanimous Court of Appeals decided that the trial judge, Clinton Canady, was wrong to deny a protective order barring Thomas M. Cooley Law School from disclosing the name of a former student whom it had sued, alleging that harsh criticisms of Cooley on his blog, the Thomas Cooley Law School Scam, were defamatory. The majority opinion faults the trial judge for deciding that Michigan law does not require such a protective order, and for assuming that a public figure like Cooley is exempt from having to allege and prove actual malice simply because the Doe had called its conduct criminal. Under the ruling, Doe will be able to seek to have the complaint dismissed either on its face or for lack of evidence to support the claim that his blog is defamatory.
That said, as Paul Levy notes, in the above blog post, this is not a complete victory, as the court failed to provide important guidance to future cases in Michigan concerning these kinds of issues, and specifically fell down on the important point of requiring notice in such cases. Many other courts have said that if you are seeking to unmask an anonymous commenter, there must also be notice to that anonymous person such that they can seek to block being revealed. The appeals court in Michigan decided not to establish that as a rule.
For future cases, however, it is disappointing that the majority opinion, in its effort to avoid applying the Dendrite and Cahill standards directly, gave little guidance to trial courts about the standards under which anonymous speakers’ requests for protective orders should be decided by trial judges. And most troublesome is the majority’s deliberate refusal to address the notice requirement on which every other state appellate court has insisted, because otherwise an anonymous defendant may not know that a subpoena has been issued seeking his identifying information. Thus, while the Doe was well-protected in this case, that is only because Cooley Law School issued a press release announcing its defamation claims, enabling the Doe to file a motion to block the subpoena.
A powerful opinion by Judge Jane Beckering concurs in the decision to overturn the denial of anonymity protection and remand the case, but strongly disagrees with the reasoning, arguing that Michigan should embrace the approach taken by almost very other state that has addressed the issue and adopt clear standards to guide trial judges. Judge Beckering explains that Michigan’s existing rules require notice before subpoenas can be issued, and hence that appropriate First Amendment standards can be incorporated without any need to change the current rules.