Recently, the Michigan Court of Appeals rejected the request of Thomas M. Cooley Law School to reveal anonymous bloggers who have publicly criticized the school’s use of national rankings and graduate employment statistics. The controversy began when a former Cooley student created a blog called Thomas Cooley Law School Scam in order to critique some of Cooley’s advertising practices. Specifically, although U.S. World and News rankings place Cooley as a “Fourth-Tier” law school, Cooley publicly advertises its ranking as number two in the nation, second only to Harvard Law, by creating its own ranking system.
Several former students joined the online blog to critique the school practices, claiming the administration was participating in fraudulent representations to students. Shortly after the blog hit the web, Cooley filed suit seeking to unmask the anonymous bloggers and prevent the negative critiques of the school. In response, one of the bloggers, Rockstar05, filed a request for a protective order, which was oddly denied.
On appeal, the Michigan Court of Appeals ruled that the trial judge erred because the judge failed to state why it denied the protective order, and explained that Cooley would need to prove actual malice, even where the anonymous bloggers called its conduct criminal. Despite the vague protection the decision gave Rockstar05, the court failed to create clear standards to dictate when trial courts could permissibly allow a plaintiff to unmask anonymous commentators.
Specifically, the attorneys for the bloggers wanted the court to adopt the Dendrite rule, which requires those using a subpoena to identify anonymous commentators to meet certain procedural requirements. In order for a court to deny a request for a protective order under Dendrite, a plaintiff would have to:
Even more troubling is the fact that the court specifically refused to require plaintiffs to give any notice whatsoever to an anonymous blogger before a trial court could issue a subpoena to reveal an online identity. Despite the fact that every other state appellate court had required such notice, because of the court’s decision, Michigan bloggers may not be given notice that a subpoena seeking to uncover their identifying information has even been issued.
Anonymous political and critical speech has deep roots in American history. The Federalist Papers were published under the pseudonym “Publius.” Early American pamphleteers, including Benjamin Franklin, used pseudonyms to protect themselves from government retaliation. The Supreme Court has recognized the right to anonymous speech as part of the First Amendment’s protection for free expression. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down a state law requiring the identification of pamphlet authors, holding that anonymity is a shield from the tyranny of the majority and can promote courageous, even controversial, expression.
Online anonymous speech is the modern equivalent. Critics of corporations, institutions, and public officials often depend on anonymity to protect themselves from retaliation, harassment, or the chilling effect of potential litigation — even where their speech is protected by the First Amendment. The question of when courts should compel disclosure of an online speaker’s identity is therefore one of the most significant First Amendment questions in internet law.
Most state appellate courts that have addressed the issue have adopted either the Dendrite standard (from Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (App. Div. 2001)) or the more plaintiff-friendly Cahill standard (from Doe v. Cahill, 884 A.2d 451 (Del. 2005)). Under Dendrite, the plaintiff must make a substantial showing of each element of the claim and demonstrate that disclosure is necessary — without this showing, the subpoena will not issue. Under Cahill, the plaintiff must make a good faith factual showing that they have a viable claim and that disclosure is necessary to identify a defendant.
Both standards reflect a balance between the plaintiff’s legitimate interest in identifying those who defame them and the anonymous speaker’s interest in protected speech. Michigan’s failure to adopt either standard — or any clear standard — leaves Michigan bloggers and online commentators in a more vulnerable position than speakers in most other states.
Following the Cooley decision, Michigan online speakers have less legal protection than speakers in states that have adopted the Dendrite or Cahill standard. Bloggers, reviewers, and social media users who post critical content about businesses or institutions should be aware that a plaintiff could potentially obtain a subpoena seeking to uncover their identity without the procedural protections those standards provide. The practical implication is that anonymous online speech in Michigan carries legal risk — even where the underlying speech is protected by the First Amendment — because the process of establishing that protection may require the speaker to come forward and identify themselves.
If you are an anonymous blogger who has been targeted with a subpoena or a defamation lawsuit, or if your online speech has been used as the basis for a legal demand, Revision Legal’s internet attorneys can help you understand your rights and mount a defense. Contact Revision Legal today at 855-473-8474 or through our online contact form.
The Cooley case is part of a broader pattern of institutional plaintiffs — corporations, universities, and government entities — attempting to use defamation and trademark law to silence online critics. Courts have generally been skeptical of these efforts, recognizing that robust criticism of powerful institutions serves important public values protected by the First Amendment. But the law in Michigan remains less protective of anonymous online speakers than it is in states that have adopted the Dendrite standard, which means Michigan bloggers and online commentators face ongoing legal risk when they criticize powerful institutions.
Online critics who want to protect themselves should understand: (1) the difference between protected opinion and actionable false statements of fact; (2) the implications of anonymity — anonymous speech is protected but anonymity can be overcome through court proceedings; and (3) the difference between Section 230 immunity (which protects platforms, not speakers) and First Amendment protection (which protects the speaker but must be asserted affirmatively). An attorney who understands internet defamation law can help you structure your online communications to maximize legal protection and minimize exposure.
Revision Legal’s internet attorneys are experienced in both defending anonymous bloggers against unmasking efforts and pursuing defamation claims on behalf of clients whose reputations have been damaged by false online statements. Contact Revision Legal today at 855-473-8474 or through our online contact form.
Revision Legal is a national intellectual property and internet law firm that represents clients across the United States in trademark, copyright, trade secret, and internet law matters. We are a firm of specialists — not general practitioners who handle IP work as one component of a broad practice, but attorneys whose entire professional focus is on the intersection of technology, creativity, and commerce.
Our attorneys have handled cases at every level of the federal court system, including the United States Court of Appeals for the Federal Circuit, the Sixth Circuit, the Ninth Circuit, and before the Trademark Trial and Appeal Board. We manage trademark portfolios for hundreds of clients, ranging from individual entrepreneurs registering their first mark to publicly traded companies maintaining global trademark portfolios across dozens of countries.
We believe that access to expert legal counsel should not depend on the size of your organization. Revision Legal’s flat-fee service model for routine IP matters — trademark registration, copyright registration, DMCA notices, and standard licensing agreements — allows small businesses, startups, and individual creators to access the same quality of legal representation that larger companies receive, at a price that is predictable and fair. For complex litigation and contested proceedings, we work efficiently to achieve the best possible outcome for our clients while managing costs responsibly.
Whatever your intellectual property or internet law need — whether you are protecting a new brand, enforcing your rights against an infringer, defending against a legal demand, or navigating a complex licensing transaction — Revision Legal has the expertise to help. Contact us today at 855-473-8474 or through our online contact form to discuss your matter.
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