by Paul Alan Levy
The Michigan Court of Appeals issued a decision today on the standards for deciding whether a plaintiff claiming to have been wronged by anonymous (or pseudonymous) online speech may compel the host of that speech to provide information that could aid the plaintiff in identifying the speaker so that process could be served and the case could move forward. Previous decisions of the Michigan Court of Appeals have woven a complicated skein of cases, and those of us who advocate protections for online speech were hoping that the court hearing Sarkar v Doe, a case involving anonymous comments providing peer review of scientific research, might consolidate the cases around a single standard and move Michigan in the direction of the consensus Dendrite / Cahill standard that a dozen states have now adopted. We got the former, but not yet the latter. (Public Citizen submitted an amicus brief in the appeal).
The basic holding of the case is that when a plaintiff is seeking discovery to identify anonymous speakers whom the plaintiff is suing, the court should issue a protective order unless the plaintiff can defeat the Michigan state court procedure called a “motion for summary disposition.” The court made clear that this does not mean that an actual motion for summary disposition must be filed; it is enough that a protective order be sought and that the plaintiff’s claims be tested against the summary disposition standard. Michigan allows two main kinds of motions for summary disposition – a motion that challenges the sufficiency of the complaint to state a claim, under Michigan Court Rule 2.116(C)(8)), and a rule based on the lack of evidence to support the plaintiffs claims under Michigan Court Rule 2.116(C)(10), which in federal court and many states would be called a motion for summary judgment.
In the Sarkar case, the court applied the standards for summary disposition under rule (C)(8), which disposed of Sarkar’s claims because, in defamation cases at least, Michigan law requires plaintiffs to plead with unusual specificity, and Michigan law also sets high standards for defamatory meaning. Because the discussion on Pubpeer was highly fact-based, but it was the conclusions that the commenting scientists drew from those facts that Sarkar claimed were defamatory, the Court of Appeals dismissed his libel claims because the challenged statements represented constitutionally protected opinion based on disclosed facts.
In the previous decisions, Thomas Cooley Law School v. Doe and Ghanam v Doe, panels of the Court of Appeals had considered cases in which, respectively, the Doe and the site hosting a Doe’s speech sought to quash process to identify the Does, and Sarkar had argued that the decision in Cooley, which he characterized as providing less protection for the First Amendment anonymity rights of the Doe who was appealing there, should be applied in this case because, although the host had moved to quash the subpoena, one of the Does had also appeared to protect his First Amendment right to speak anonymously. The court noted that the First Amendment protects non-appearing Does and appearing Does alike, and that it would actually discourage full adversary presentations if the showing required of a plaintiff goes down when the Doe appears to argue the case. Thus, adopting an argument we made in Public Citizen’s amicus brief, the Court held that the same protective standard applies whether or not the Doe is present in the case as a litigant.
But another argument we made in the amicus brief was not adopted – although happily it was not rejected, either. We urged the Michigan Supreme Court to demand an evidentiary showing as do appellate courts in a dozen states and the District of Columbia and, indeed, to insist on the final Dendrite “balancing” stage that the majority of those states use. The Court of Appeals decision is carefully written not to address that issue; indeed, although appellate courts in other states have seized the occasion of appeals relating to subpoenas to identify anonymous speaker to write broadly about standards applicable in other similar cases, Sarkar shares the cautiousness of the Cooley and Ghanam panels in writing only enough to decide the cases before them.
The court says that a plaintiff must be able to overcome a motion for summary disposition, and it holds that Sarkar cannot overcome summary disposition based on the face of his complaint, just as plaintiffs Thomas Cooley Law School and Ghanam were unable to do. It may remain for a future case in which the complaint is facially sufficient for the Michigan courts to decide whether a facially sufficient complaint that is nevertheless not supported by any evidentiary showing creates a sufficiently compelling interest to overcome the First Amendment right to speak anonymously.