By:  Timothy P. Flynn

Just last week, I was arguing a wrongful death civil rights appeal before the United States Court of Appeals for the Sixth Circuit.  It had been my first trip to Cincinnati for an appeal in more than 5-years.  Always very serious business down there.

Then today, I noted that the National Law Journal carried a story of Cooley Law School's ill-fated defamation law suit that was first dismissed by a federal judge in Detroit, then affirmed by the Sixth Circuit.

Faithful readers of our blog will recall that Cooley was one of our pet subjects in years past.  Usually, the law school's own folly provided grist for our mill; i.e. when they, with an apparent straight face, proclaimed their #2 law school ranking on their own website.

Here is the trajectory of the Cooley law suit.  First, several of Cooley's alumni sued in federal court on a fraud theory claiming the tier three school's promotional literature and web site misrepresented how their graduates fared in the legal industry.  [Keep in mind the timing of the disgruntled students' attempted class action suit was during the Great Recession.]  Next, while those suits were pending, Cooley hired Miller Canfield to counter sue and to file separate actions for defamation.

It was Cooley's defamation suits that were dismissed for lack of merit.  We here at the Law Blogger predicted the suits would fail after years of expensive discovery and an even more costly appeal; our prediction has come true.

It gets costly to prop-up an over-inflated image.  Perhaps coincidentally, the NLJ's article also referenced projected faculty and staff cut backs scheduled for the nation's largest law school.

So if you are a current Cooley Law student, and you are planning to attend the Ann Arbor Campus, think again; that extension has been terminated. You will need to commute to either Auburn Hills or the flagship campus in Lansing.

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Shirley Sherrod

There is a case pending in Washington, D.C. that involves the intersection of blogging and defamation and tests D.C.'s brand new anti-SLAPP law.  SLAPP stands for "Strategic Lawsuits Against Public Participation" -these injunctive laws are designed to provide defamation defendants immediate substantive protections against meritless libel suits -suits filed solely to silence a particular voice.

We all recall when former federal employee Shirley Sherrod had a video of her public comments edited and blog-posted by the recently-deceased conservative blogger, Andrew Breitbart.  The [deceptively] edited video made Sherrod, then a USDA official, look like she was making publicly racist comments about a white farmer seeking USDA assistance to save his farm from foreclosure.

In fact, Sherrod's un-edited statement showed she was telling a story from her past to illustrate the possibility of racial reconciliation.  The truth came out too late, however, to save Sherrod's job at the USDA.  And when it finally did come out, Sherrod rejected the Obama Administration's public apology-laced offer of re-employment.

Instead, she sued Breitbart and his assistant in the District of Colombia Superior Court for defamation; the defendants removed the case to federal court.  Sherrod claimed that the video intentionally and deceptively altered her public comments, causing her loss of employment and stress that has now affected her health.

The defendant-bloggers claimed they were merely expressing a political opinion through posting the edited video and filed a motion to dismiss the suit on anti-SLAPP grounds.  The motion was denied by the trial judge and oral arguments on the appeal were heard by the United States District Court for the District of Colombia last month.

A decision in the case is expected soon.

We here at the Law Blogger await this decision to see how the D.C. anti-SLAPP legislation fares in one of the first, and certainly most high profile, cases to test the law governing free speech through blogging, and its limits, in our nation's capital.

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