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First Amendment Law: Anonymous Bloggers In Michigan Lack Clearly Defined Rights

By Eric Misterovich

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 court could permissibly allow a plaintiff to unmask anonymous commentators.

What standards could the court have established?

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 under Dendrite, a plaintiff would have to:

1. Give the blogger notice and a reasonable opportunity to respond;

2. Specifically identify the actionable statements;

3. Set forth a prima facie cause of action;

4. Support all the claims with proper evidence; and

5. Balance the blogger’s First Amendment law rights against the plaintiff’s cause of action.

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 has 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. Thus, although the court may have given Rockstar05 an opportunity to gets the claims here dismissed, mostly over Cooley’s lack of specific malice evidence, other Michigan bloggers should beware.

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