Lower court should have protected blogger's identity, Mich. appeals court rules

The identity of an anonymous blogger sued for defamation does not have to be disclosed, according to the Michigan Court of Appeals.

The appeals court ruled last week that a lower court erred when it refused to protect the anonymous identity of the blogger known only as “Rockstar05.” The trial judge incorrectly applied law from outside the state when it should have used Michigan law addressing anonymous online commenters, the appeals court stated.

“We disagree with the trial court’s conclusion that Michigan law does not adequately address this situation,” Judge William C. Whitbeck wrote in the majority opinion. “We conclude that Michigan procedures for a protective order, when combined with Michigan procedures for summary disposition, adequately protect a defendant’s First Amendment interests in anonymity.”

In July 2011, the Thomas M. Cooley Law School in Lansing, Mich., sued a former student who anonymously started a blog called Thomas Cooley Law School Scam.

According to the appellate court, the trial court relied on the "Dendrite test," developed by a New Jersey appellate court, when it should have used similar Michigan law to rule on the issue. The five-tiered Dendrite test requires a complainant to: provide notice to the anonymous commenter to find counsel and respond; identify specific defamatory statements; state the elements of the cause of action; and, provide sufficient evidence for each part of the claim. The court must then balance the right to anonymous speech against the plaintiff’s interest in the poster’s identity.

The Michigan law would have been adequate for this situation without involving the Dendrite test, the opinion stated.

According to the Michigan law, the plaintiff must allege the exact defamatory statements and survive a motion to dismiss. Further, the trial court may weigh a defendant's First Amendment rights against a plaintiff's discovery request when determining whether to issue a protective order.

In the highly critical blog, Rockstar05 complained about the school’s graduate employment rates and admissions standards. The school learned the blogger’s identity after subpoenaing the blog’s California-based host, Weebly Inc.

According to court documents, someone from the company accidentally disclosed information about the blogger to the law school. Weebly intended to keep the blogger's identity anonymous until the court ruled on the blogger's motion to quash the subpoena.

In last week's ruling, the appeals court returned the case to the lower court to determine whether it has the power to quash the school's subpoena to Weebly. If it does not or declines to do so, the trial court should apply Michigan law to determine whether the anonymous blogger would be entitled to a protective order masking his or her identity. The appellate court opinion also rejected claims by the law school that since it inadvertently learned of the identity of the anonymous commenter, the legal fight for a protective order is moot.

"Cooley's knowledge does not prevent this Court from granting relief that will have a practical legal effect on the controversy," the opinion stated.

Rockstar05’s lawyer, Paul Alan Levy, said in an interview that the anonymous blogger hasn’t decided whether to seek further review of the decision. Although the appeals court’s opinion is good news for his client, Levy said the ruling did not go far enough in dictating how trial judges should issue protective orders for anonymous bloggers.

“I’m a little concerned about what it means for the development of the law,” Levy said.

Levy sought to quash the subpoena and obtain a protective order that would bar Cooley from using the information Weebly gave them, but both motions were denied.