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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, December 15, 2012

Anonymous Internet Critics II

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics from the beginning.  The defamation defendant is one of the legion of graduates that has trashed the law school; in this case, a blog titled "The Thomas M. Cooley Law School Scam".

This is an important privacy law and First Amendment case.  This post brings our readers up-to-date with an important development in the case: oral argument at the Michigan Court of Appeals.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Washington D.C. lawyer Paul Levy of Public Citizen, and Berkeley, MI attorney John Hermann.

For their part, Miller Canfield had been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October of last year, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  The lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocutory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 appealed Judge Canady's decision relative to the subpoena, filing this brief on appeal through his [or her; we do not know] high-powered Washington D.C. media lawyer.  For it's part, the media has filed a hard-hitting amicus brief.

Oral arguments were conducted last week at the Michigan Court of Appeals in Lansing.  This blog predicts [hopes] that the Michigan Court of Appeals will decide in favor of the critical blogger.

The primary issue before the intermediate appellate court is whether Cooley must disclose to the trial court a rational litigation-oriented basis to divulge the blogger's identity; something other than revenge.  The blogger's appellate lawyer asked the Court of Appeals to adopt the "developing consensus" standard.  When asked to un-mask an anonymous speaker, this standard would require the trial court to:
  • Provide notice to the anonymous speaker and an opportunity to defend the speaker's privacy;
  • Require the defamation plaintiff to identify the specific allegedly tortious statements;
  • Ensure the defamation plaintiff's complaint sets forth a valid cause of action;
  • Require an offer of proof supporting the claims made in the defamation complaint; and
  • Balance the relative harms to the plaintiff and defendant as to the anonymity.
For it's part, the Miller Canfield law firm argued on behalf of Cooley that Michigan law does not require a preliminary showing that it is likely to prevail on the merits prior to un-masking the anonymous litigant and blogger's identity.

We here at the Law Blogger will monitor this case and report back to our readers as to how the Court of Appeals decides this privacy law issue.

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