by Paul Alan Levy
A decision yesterday by a panel of the Michigan Court of Appeals shows that First Amendment protections, and particularly protection for online anonymity, is alive and well in Michigan. Ruling in Ghanam v. Doe, the Court held that when discovery is sought to identify anonymous defendants so that they can be sued for defamation, the Court must first ensure that the plaintiff has taken reasonable steps to notify the defendants of the threat to their anonymity, and must then evaluate the litigation to make sure that the claims are sufficient to survive a motion for summary disposition. Applying that standard, the Court held that each of the statements over which plaintiff Gus Ghanam had sued was a rhetorical expression of opinion protected by the First Amendment.
The panel agonized about the fact that it was bound by a ruling last year of another panel of the Court of Appeals in Thomas Cooley Law School v. Doe, which reversed an order allowing identification of the anonymous defendant in that case (who was represented on appeal by Public Citizen), but based only on Michigan law. In Thomas Cooley, the Court refused to rule as a matter of First Amendment law that evidence be presented in support of elements of a defamation claim that a plaintiff can reasonably be expect to prove without knowing the identity of his detractors, such as falsity and damages. The Cooley court had decided that these conditions could be met by applying Michigan’s own court rules providing for a protective order against discovery pending ruling on a motion for summary disposition based either on the face of the complaint or based on affidavits.
The panel in Ghanam felt it was constrained by the Cooley holding not to adopt the standards of Dendrite International v. Doe or Doe v. Cahill as a matter of First Amendment requirement, even though it made clear that it would have preferred to have gone that route. However, the panel urged the Michigan Supreme Court or legislature to consider adopting those requirements.