10/17/11

Bloggers and Anonymous Commenters Sued for Defamation by Cooley Law School

Defamation claims against bloggers may be on the rise, and it may be that lawyers, law firms, and law students are providing an online prototype for others interested in suing bloggers for alleged defamatory conduct.  Seems that a story that has been brewing on the web for months now just got some big, national exposure today as the National Law Journal (and Law.Com) have published an article entitled, "Ripping a critic's mask off: A law school fought to learn the secret identity of an ex-student blogger," written by Karen Sloan.

Blogger Rockstar05 and Anonymous Commenters Sued for Defamation by Cooley Law School

In the National Law Journal piece, readers are given a blow-by-blow of Thomas M. Cooley Law School's ongoing litigation against an anonymous blogger publishing under the moniker of Rockstar05 and three other anonymous defendants (at least two of which are those leaving comments to Rockstar05's post, with another leaving a comment at the Huffington Post), a suit filed by the law school asserting the school has been defamed by the defendants via the words that they wrote online.  The law school is also suing a New York law firm, one of its partners and another lawyer working there, for "trolling" websites under the guise of investigating a class action while "...posting false and defamatory statements about Cooley on various public websites."  Complaint in Cause No. 11780, pp. 1-2 (full copy here).

Rockstar05 is fighting against his or her name being revealed; there's a gag order in place right now on Rockstar05's identity, although Cooley's counsel knows who Rockstar05 is (and so does Karen Sloan of the NLJ, who interviewed Rockstar05 for her article).  What did Rockstar05 do, exactly?

Rockstar05, according to Cooley's complaint, wrote a post entitled, "the Thomas M. Cooley Law School Scam," which can be read in its entirety as Exhibit B to the Cooley pleading (full copy here). 

Public Citizen Has Filed an Amicus Brief in the Cooley Law School Case, Arguing Application of Dendrite Int'l.

Also contributing to the national import of this growing story is the amicus curiae ("friend of the court") brief filed by Public Citizen, a nationally-known consumer rights group.  In its brief, Public Citizen argues for the First Amendment rights of anonymous bloggers, citing to Dendrite International Inc. v. Doe No. 3, et al., where the New Jersey courts have defined a set of guidelines for trial courts "...faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP [ internet service provider] to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses...."

Among the standards set by Dendrite Int'l, the burden of the plaintiff to establish:

... that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
This is a big deal - and while Michigan isn't required to follow New Jersey, the opinion is well thought out and does recognize the free speech interests at stake when bloggers are sued for what they have written.

October 24th Hearing On Merits of the Defamation Suit

Right now, there is a setting on October 24, 2011, where the law school's law suit against Rockstar05 and the John Doe defendants will go forward.  More and more eyes are watching this case, and there is some commentary already that by filing this suit, Cooley has actually given the controversial words a lot more exposure than they would have had otherwise, by filing this lawsuit.

For details on the suit, you can read the press release by Cooley as well as the petitions that have been filed (pdfs available for reading and downloading at the Cooley Law School site). 

For more commentary, consider:

Professor Turley, who points out the Pandora's Box of discovery that Cooley Law School may have opened for itself.



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