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.

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Comments on “Appeals Court Protects Anonymity Of Critics Of Cooley Law School, But Could Have Done More”

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That Anonymous Coward (profile) says:

Why should corporations be subject to the same rules as everyone else?

If I were to file suit against, oh lets hypothetically say, Prenda using this courts ruling means I don’t need to give them notice. Except if I don’t give them notice the court will toss my suit.

High Court/Low Court… it really isn’t just a fringe thinking idea any longer.

Corporations are people, people who have power and rights far beyond normal people… equal justice is just an outdated concept that we pay lip service to but can no longer expect in a majority of legal matters in this country.

Anonymous Coward says:

Judge Beckering explains that Michigan’s existing rules require notice before subpoenas can be issued,

direct quote from the article- basically, the existing rules already require notice; the court may have thought that as they were saying the rules applied, a requirement to notify the anonymous commentator was already in place.

incidentally, how IS notice sent to an anonymous commentator?

Anonymous Coward says:

Re: Re:

By asking the person who could reveal who they are to forward the notice. However identifying who actually posted a comment is fraught with problems, as it may be based on an IP address, or an Email account and password. Note that a valid login is not a guaranteed identifier of a person, as the may have had their login information stolen, or left a logged in machine unattended, or let someone else comment in their name.

That Anonymous Coward (profile) says:

Re: Re: Re:2 Re:

not really. It might just be someone who isn’t actually a party to the alleged actions who does not feel like being dragged into court to entertain the plaintiffs.

Look at the overly broad demand Duffy (of Prenda fame) issued to WordPress. The IP’s of every one to ever visit 2 blogs, posting or not. Should someone reading an article should not be forced to have to deal with a lawyer on a fishing trip. Those anon’s should have every right to fight the release of their information, and the ability to not have it made public they read an article on a website.

As that demand targeted at minimum thousands of people, each and everyone of them needed to be made aware of the request as each could present different challenges to the subpoena. (well had it been valid).

Anonymous Coward says:

Re: Re:

um, defamation doesn’t actually affect freedom of speech. What it means is that if you present criticism of somebody as fact, then it actually needs to be true.

Let me give an example. IF I said that Mike delibarately lied on this blog about how copyright holders act, that would be defamation (since as far as I know, he doesn’t deliberately lie) If I said that in my opinion he was lying, then that probably wouldn’t be defamation. Equally, if I could prove Mike was lying, it wouldn’t be defamation.

there are a couple of other exceptions (if you made a good-faith effort to check your facts it isn’t defamation, for example. Another one is there must actually be damage to someone’s reputation. (most commonly because no-one actually heard someone sounding off, but it’s also possible if their reputation is that bad.)

( and just so nobody flames me: the reference to Mike Masnick was for the purposes of example only, and should not be taken as a statement of fact)

In short, Defamation means you can’t state your opinions as fact. A defamation suit is essentially telling someone to prove their claims or STFU.

Johnathan Carter says:

Cooley Alumni SuperLawyers

Thomas. M. Cooley Law School has instilled in many of its graduates the skills necessary to become a successful. It’s difficult to argue to with facts. Here is the link to SuperLawyers who have graduated from Thomas M. Cooley Law School:

In addition, Thomas M. Cooley Law School is one of the larger law schools in the U.S. meaning that it a graduate of the school has a larger network of alumni to refer work to and from.

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