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A Better Partnership
December 12, 2016

COA holds identities of anonymous bloggers protected by First Amendment

In Fazlul Sarkar v John Doe, Nos. 326667 and 326691, the Court of Appeals held that the identities of anonymous bloggers who comment on other's research online are protected by the First Amendment.  
 
Plaintiff, Dr. Sarkar, a distinguished professor with a track record of cancer research, pursued a lucrative employment opportunity at University of Mississippi. After relocating to Mississippi, the university was unwilling to go forward with his employment relationship based on allegations lodged by public comments made by an anonymous individual on pubpeer.com.
 
After losing his employment opportunity with the University of Mississippi, the plaintiff pursued various legal remedies, including defamation, intentional interference with a business expectancy and a business relationship, invasion of privacy and intentional infliction of emotional distress. In an attempt to learn the identities of the individuals who were responsible for the actions at issue, the plaintiff subpoenaed the Pub Peer Foundation and the entity that operates pubpeer.com seeking all identifying information for approximately 30 comments made on pubpeer.com about his research. Pubpeer objected, moving to quash the subpoena on First Amendment grounds.
 
Pubpeer is a website that describes itself as an online community that uses the publication of scientific results as an opening for fruitful discussion among scientists. Pubpeer was created by an anonymous scientist and scientists are permitted to comment anonymously as well. The plaintiff argued that this case is not about free speech, but rather he asserted it is about tortious conduct that is destroying a man’s life and career.
 
The COA held the U.S. Constitution protects an individual’s speech over the internet to the same extent as speech of other media, and this remains true regardless of whether the individual identities him or herself or remains anonymous. The U.S. Supreme Court has determined that an author’s decision to remain anonymous, like other decisions concerning omissions or additions, the content of publication is an aspect of the freedom of speech protected by the First Amendment. McIntyre v Ohio Elections Comm, 514 US 334; 115 SCT Ed 2d 426 (1995). However, the right to anonymously make expression over the internet does not extend to defamatory speech which is not protected by the First Amendment. Ghanam v John Does, 303 Mich App 522; 833 NW2d 331 (2014).
 
In this present case, no defendant was notified of the lawsuit and no defendant had been involved with any of the proceedings, which means that there was no one to move for summary disposition or protect his or her First Amendment rights. Furthermore, Michigan law requires a plaintiff to specifically identify every statement that he or she claims is capable of defamatory meaning. Here, the plaintiff quotes certain words, some phrases, and provides citations to various webpages. The court concluded this was insufficient and was unable to survive a motion for summary disposition pursuant to MCR 2.116 (c)(8).
 
The First Amendment protects an individual’s right to speak anonymously. Cooley, 300 Mich App at 256. However, defamatory statements are not entitled to this same protection. Ghanam, 303 Mich App at 534. “To be considered defamatory, statements must assert facts that are ‘provable as false.’ ” Id. at 545. Nevertheless, state and federal courts alike have consistently held when a speaker presents a factual basis for the opinion he or she reached, his or her opinion is not capable of defamatory meaning. Partington, 56 F3d at 1156
 
Individuals are entitled to make anonymous statements under the First Amendment, and the mere fact that someone later prints some of those anonymous statements and distributes those does not suddenly destroy that protection. Accordingly, the COA concluded while the plaintiff's defamation claim may nevertheless proceed, he is not entitled to discovery from PubPeer in this regard.
 
Accordingly, the COA permitted the plaintiff to pursue a defamation claim with respect to the distributed flyer or his intentional interference with business expectancy, intentional interference with a business relationship, invasion of privacy, or intentional infliction of emotional distress claims. However, the court held the plaintiff is not entitled to unmask the identities of any speakers on pubpeer.com with respect to those claims due to the anonymity protections afforded by the First Amendment.

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