Supreme Court Asked to Consider Court of Appeals’ Decision to Keep Anonymous Bloggers Identities Secret in Defamation Suit

In Ghanam v. John Does et al. the Michigan Court of Appeals reversed a trial court’s decision to allow the deposition of a fact witness in a defamation suit filed against ostensibly anonymous commentators on an internet-based public forum.

Last week, I filed an application for leave to appeal in the Michigan Supreme Court in this case on February 13, 2014, working with co-counsel for the Plaintiff.  99784 sc application and attachments date stamped copy

I wrote about this issue of law in a previous post, here:Court of Appeals Addresses Anonymous Internet Blogger’s Rights to Remain Anonymous

In that case, the decision of the Court of Appeals was not appealed to the Supreme Court.

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.  Mr. Tucker regularly participates in cases before the Supreme Court and Court of Appeals on issues touching many subject-matter areas of civil litigation, including insurance coverage disputes such as that at issue in the instant case.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
• Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

• Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
• Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
• Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer
• Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
• Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
• Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
• Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.

Court of Appeals Rules Michigan Court Rules Adequately Protect Anonymous Defendant’s First Amendment Rights to Free Speech in a Defamation Suit in which Defendant Seeks to Remain Anonymous and Refuses to Judicially Adopt Anti-SLAPP Legislation in Michigan

The Court of Appeals issued an opinion in Thomas M. Cooley Law School v. John Doe 1 today.

In this published opinion addressing an issue of first impression in Michigan, the Court of Appeals in a split opinion (2-1) (Whitbeck, J. and Meter, J. in the majority and Beckering, J. in a partial dissent) held the trial court erred in the manner it analyzed whether to issue a protective order to maintain anonymity for a blogger who posted commentary criticizing Thomas M. Cooley Law School (the Plaintiff).

The Plaintiff filed a defamation suit against the defendant, a former law student, in Ingham County Circuit Court.  The Plaintiff sought a subpoena from a California court (the location of the defendant’s domicile) to have the company Weebly.com (the company owning the website where the criticism was posted) disclose the defendant’s identity.  The California court issued the subpoena.  The company refused to do reveal defendant’s identity until the trial court had ruled on the defendant’s motion for a protective order, or, alternatively to quash the subpoena.  However, an employee of the company inadvertently disclosed the defendant’s identity.  The trial court found the motion to quash the subpoena to be moot, but did issue a protective order and sealed the court pleadings pending the decision by the Court of Appeals on the interlocutory application.

The majority concludes the trial court erred in applying law from other states, but affirms that the protective order was appropriate.  The majority holds that Michigan rules of discovery coupled with Michigan’s summary disposition standards adequately protect a defendant’s first amendment rights to remain anonymous pending a defamation suit.  The majority noted it would not judicially create anti-SLAPP legislation, as that was best left to the Legislature.  SLAPP stands for “strategic lawsuits against public participation”.  See Slip Op. p. 7, n. 42 (Beckering, J., concurring in part and dissenting in part).

Judge Beckering disagrees with the majority’s ruling that Michigan law adequately protects a defendant’s rights in this situation.  She notes if, as the Michigan Court Rules allow, a plaintiff can commence discovery as soon as a lawsuit is filed and potentially learn a defendant’s identity before the defendant even knows of the lawsuit, the defendant’s identity could be revealed before he or she has an opportunity to seek a protective order.  Judge Beckering argues that formal procedures should be adopted to accommodate for this modern situation involving internet blogging, anonymous postings, and freedom of speech under the state and federal constitutions.   Slip Op. at 1-2 (Beckering, J. dissenting).

She points out that while it may be best for the Legislature to adopt legislation (over half of the states have already adopted some form of legislation addressing these issues), there is no reason the Court of Appeals cannot create a hybrid procedure using other state case law and the rules of procedure in Michigan.

This is a split, published opinion addressing an issue of first impression in Michigan.  It was also addressed, understandably, in an interlocutory appeal.  I am certain that the Michigan Supreme Court will soon be asked to address this case, and it may actually be done before the end of this term given the policy issues involved and the pending lawsuit.

There is much to this opinion.  This blog does not and cannot do it justice, so I would urge anyone interested in this area of the law to read the opinion.  It very thoroughly discusses the current case law and the various theories throughout the United States, which have been adopted in an effort to balance the interests of plaintiffs seeking to redress defamatory speech and defendants seeking to remain anonymous when within their rights under the first amendment.

Another interesting aspect of this is Michigan’s constitutional provision protecting free speech.  It contains a much more modern articulation of the freedom of speech as a constitutional right than the First Amendment to the U.S. Constitution; and, arguably, might be sufficient to realize the just result in these types of cases.  Mich. Const. 1963, art. 1, § 5 provides:  “Every person may freely speak, write, express and publish views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech….”  Again, this is a modern articulation, being placed in the 1963 Constitution, but certainly it provides very powerful language to accommodate current situations pertaining to blogging, anonymous criticism on the internet, and the like.