Ghanam v. Does
303 Mich. App. 522
| Mich. Ct. App. | 2014Background
- Munem sought a protective order to bar discovery of anonymous posters on The Warren Forum.
- Plaintiff bars identified statements referenced as defamation per se against him as a public official.
- Anonymous posters used pseudonyms and made statements about salt theft and tires in Jan–Feb 2012 threads.
- Plaintiff sought to depose Munem to identify forum ownership and posters; Munem was a former city employee.
- Trial court granted ex parte order allowing deposition; Munem challenged on First Amendment grounds and privilege.
- Court held two additional requirements; rejected unfettered discovery and remanded with judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may identify anonymous posters. | Munem argues for protection of anonymous speech; Dendrite/Cahill standards. | Munem contends sufficient First Amendment protections and need for merit before discovery. | Yes; protective order required; statements not defamatory; remand for judgment for defendants. |
| What standard governs disclosure of anonymous defamers. | Plaintiff seeks Dendrite/Cahill-style strict scrutiny. | Michigan Cooley framework suffices; no need to adopt Dendrite/Cahill here. | Cooley framework applies; two additional requirements adopted (notice and testing under MCR 2.116(C)(8)). |
| Must anonymous defendants be notified of discovery efforts. | Discovery should proceed without prior notice. | First Amendment requires notice to anonymous posters where feasible. | Plaintiff must notify anonymous commenters of proceedings; ex parte discovery barred. |
| Are the statements defamatory per se or mere rhetorical hyperbole? | Statements alleged to accuse theft and criminal activity. | Read in context, posts are rhetorical hyperbole/not provable facts. | Statements not defamatory as a matter of law; not actionable. |
| Can plaintiff amend the complaint after summary disposition? | Amendment should be allowed to cure deficiencies. | Complaint deficient for not citing exact statements; amendment futile. | Amendment futile; judgment for defendants affirmed. |
Key Cases Cited
- Dendrite Int’l v Doe No 3, 342 N.J. Super. 134 (N.J. App. Div. 2001) (notice and prima facie case to reveal identities; balancing test)
- Cahill v. Cahill, 884 A.2d 451 (Del. 2005) (summary judgment standard; notice requirement; balance of interests)
- Cooley v City of Dearborn, 300 Mich. App. 245 (Mich. Ct. App. 2012) (protective orders; MCR 2.302(C); 2.116(C)(8); anonymity protection)
- McIntyre v. Ohio Elections Comm., 514 U.S. 334 (U.S. 1995) (anonymous political speech protected; not absolute in defamation context)
- Talley v. California, 362 U.S. 60 (U.S. 1960) (right to speak anonymously; First Amendment protection limitations)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for public officials)