A Michigan appellate court ruled last week that state discovery rules provide adequate safeguards for anonymous online speech.  The opinion is a significant deviation from the rulings of other state courts, which have applied a First Amendment balancing test to determine whether to grant discovery requests for the identities of anonymous online speakers.

Thomas M. Cooley Law School sued several defendants for allegedly defaming the school online and issued subpoenas for their identities.  Defendant John Doe 1, who operated a website about the law school, sought a protective order and moved to quash the subpoena to his Internet service provider.   The trial court applied a First Amendment balancing test, first articulated by state appellate courts in New Jersey and Delaware, that considers factors including (1) whether the defendant is a person or entity who could be sued, (2) whether the plaintiff made a good-faith effort to serve the defendant with process, (3), whether the lawsuit could withstand a motion to dismiss, and (4) whether there is a reasonable likelihood that discovery would uncover information that would allow service of process.   Under this analysis, the state trial court denied the motion to quash and denied the protective order.

The Michigan Court of Appeals reversed and remanded the case, concluding that the trial court applied the incorrect legal analysis.  The appellate court ruled that Michigan’s procedural rules for subpoenas and protective orders provide sufficient protection against overly broad or abusive discovery requests.  

Although the ruling is a short-term victory for the defendant, it may be a setback for advocates of anonymous online speech because the court held that the more robust First Amendment balancing test does not apply. 

In a partial concurrence and partial dissent, Judge Jane M. Beckering argued that the Michigan discovery rules do not provide sufficient protection.  For instance, she noted, the First Amendment tests require that subpoena targets receive notice.  “Because an anonymous defendant cannot undertake any efforts to protect against disclosure of his or her identity until the defendant learns about the lawsuit -- which may well be too late given that discovery is available to a plaintiff as soon as the action is commenced -- we, like numerous appeal courts in other jurisdictions, must adopt a formal procedure that balances the rights of plaintiffs and defendants,” Judge Beckering wrote.