By Sisi Wu
In 2011, Thomas Cooley Law School filed a defamation lawsuit against a former student who criticized the school on his blog, which he called “Thomas M. Cooley Law School Scam.” The blogger, “John Doe,” sought a protective order from the trial court to prevent Cooley from disclosing his real name in court documents. The trial court ruled against Doe, finding that slander per se (which Cooley sufficiently alleged in its complaint) is not protected by the First Amendment.
On April 4, 2013, the Michigan Court of Appeals reversed. The opinion surveyed various standards in other jurisdictions for determining when a plaintiff has the right to learn the identity of an anonymous defendant. Without adopting a clear standard, the appeals court determined that the trial court had abused its discretion in refusing Doe’s protective order by failing to properly consider Doe’s First Amendment rights.
Although the decision was lauded by free speech advocates for being protective of anonymous speech, observers (links below) criticized the court for failing to provide a clear standard for future cases and, particularly, for not establishing a notice requirement for subpoenas issued to obtain the identity of anonymous defendants. Without mandatory notice, defendants may not be aware that their personal information is being sought, and thus won’t file motions to quash. This uncertainty could have a chilling effect on anonymous speech.
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