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Public Citizen Tells Court: School Has Not Proven Defamation, Court Should Protect Critic’s Anonymity

 http://www.citizen.org/documents/Cooley-v-Does-Amicus-Brief-Supporting-Motion-Quash.pdf

WASHINGTON, D.C. – The identity of a blogger who criticized his law school online should not yet be revealed, Public Citizen said in an amicus brief filed today in a Michigan court.

Thomas Cooley Law School, which has several campuses in Michigan and one in Florida, is suing the author of a blog post that the school says defamed it. The blog post claimed that Cooley is a bad law school that uses misleading statements about the school’s value to attract students and that the school uses underhanded tactics to milk students of additional tuition.

Cooley has not met the criteria needed to justify unmasking an anonymous blogger, Public Citizen said in the brief. In fact, the law school has failed to prove that the blog post is even defamatory.

“The mere fact that a plaintiff has filed a lawsuit over a particular piece of speech does not create a compelling government interest in taking away the defendant’s anonymity,” said Paul Alan Levy, an attorney with Public Citizen who specializes in Internet free speech. “Setting the bar too low for disclosure would have a chilling effect on free speech. It is especially disconcerting here that a law school is the plaintiff trying to suppress one of its students’ voices.”

Cooley Law School sparked a national controversy in 1996 when it manipulated statistics to show that it was the 12th best law school in the country; this year, it added eight more factors to its test and now claims Cooley as the second best law school in the country. Among other things, some have complained that the law school misrepresented data about its students’ post-graduation employment.

The blogger, a former Cooley student, detailed several critiques of the school in a blog post entitled, “Thomas Cooley Law School Scam.” Several other anonymous people posted additional criticisms in the blog’s comment section.

In response, Cooley sued both the blogger (identified as John Doe) and three anonymous commenters on July 14 in Lansing, Mich., charging them with defamation. The blogger presumably learned of the suit by reading a press account, then got a lawyer and filed a motion to quash any subpoenas to the blog’s hosting service.

Now, the court will examine what the school should have to show to justify stripping the blogger of his anonymity.

“At this point, Cooley has claimed only that some false statements have been made about it,” Levy said. “Now it has to show that the statements on which it has sued are defamatory statements of fact, not just opinions, and to present evidence that the factual statements are false.”

To be able to obtain the blogger’s identity, Public Citizen argues in its brief, Cooley should have to notify him, and it should have to point out the specific speech that it claims is defamatory so that the court can weigh each claim and the evidence that supports it. The court should then weigh the potential harm to the school from being unable to proceed with a defamation suit and compare it to the harm the blogger would suffer from losing his anonymity. Only the notification has been accomplished.

Public Citizen urges the court to protect the anonymous blogger against being identified unless Cooley can point to defamatory speech and present evidence in support of its suit.

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Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.

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Thomas Cooley Law School’s Attack on a Critic’s Anonymity Hits Some Snags by Paul Alan Levy

The litigation reported last month in which Thomas Cooley Law School sought to stanch adverse publicity by suing anonymous critics has taken a couple of odd turns.  At the outset, the case presented the enticing possibility of having the Dendrite rule adopted in Michigan, whereby, as often discussed on this blog, a party trying to use a subpoena to identify anonymous speakers has to meet procedural and substantive standards designed to ensure that the First Amendment right to speak anonymously is not needlessly lost.

However, some sharp practices by the plaintiff’s lawyer, whose zealous advocacy for his client took him close to the ethical edge in my view, and a weak surrender by the Doe’s web hosting service, brought some other issues to the fore, and combined to put an anonymous blogger at risk.   Both Internet posters with trenchant criticisms to advance and lawyers who seek to defend them can learn some lessons from these developments.  The developments may also show a need for California to add some protections to its perhaps too-easy method for lawyers to obtain California subpoenas in support of discovery to identify anonymous posters

The case has its origins in Cooley’s efforts to attract students by developing a rating system that shows Cooley to be the second best law school in the country based on such vital statistics as the number of seats in its library.   A former Cooley student established a blog entitled Thomas Cooley Law School Scam, and included a detailed critique of Cooley's practices.   Others began raising questions about whether Cooley was inflating its graduates' employment statistics to encourage students to apply.  As the ridicule piled on, and as a class action firm prepared to file suit over misrepresentation of placement statistics, Cooley apparently decided on a preemptive strike against its critics, suing both the plaintiffs' firm and several anonymous bloggers for their criticisms.    

Representing the creator of the blog, Michigan lawyer John Hermann filed a motion to quash the subpoena to Weebly, the California company that hosted his client’s anonymous blog.  That motion was dated August 5, 2011, and was filed in the Michigan state court where the case was pending.    Because no appellate court in Michigan has yet addressed the applicability of the Dendrite standard, the case raised a potentially important issue.  The same day, Hermann contacted Weebly’s staff to let it know that he had filed such a motion; on August 9, Weebly told Hermann that he could safely “consider the subpoena squashed at this point,” promising that Weebly would “keep you informed of the situation.”

Plaintiff Gets Tough — and the ISP Caves In

Playing hardball, the next day Cooley’s lawyer, Michael Coakley from Miller Canfield, notified Hermann that he had served a California subpoena on Weebly, seeking production of documents on August 25.  For the first time, he provided Hermann with a copy of the subpoena. That afternoon, Weebly wrote back to Hermann explaining that it had received a subpoena, asking how long he needed to get a court order, and suggesting that he needed to get an actual order quashing the subpoena by August 22.  Hermann promptly responded that a California subpoena could be quashed and suggesting that Weebly might want to contact EFF to find the name of a lawyer who could represent it about the subpoena. 

Hermann was thus quite surprised to get an August 18 letter from Coakley announcing that Weebly had produced identifying information concerning his Doe client.  Coakley had the gall to announce that this disclosure made the motion to quash moot, to threaten sanctions if Hermann failed to withdraw it, and to threaten to file an amended complaint publicly identifying Hermann’s client if the Doe did not retract his complaints about Cooley, identify the anonymous individuals who had posted comments on his blog, and comply with other, as-yet-unspecified conditions.

The Court Protects the Blogger – at Least for Now

In fact, because Coakley knew that he had obtained this information in the face of a pending motion to quash the subpoena asserting that the Doe had a First Amendment privilege to speak anonymously, he not only had no right to obtain had no right to use the information against Doe, but he had an obligation to return the information pending a resolution of the discovery dispute.  That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege.  In Michigan, Rule 2.302(B)(7) provides that

  •     If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.  A receiving party may promptly present the information to the court under seal for a determination of the claim.  If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it.  The producing party must preserve the information until the claim is resolved.

Because Coakley is the head of the litigation department at a prominent Detroit law firm, he must have been aware of this rule.  In fact, his letter could be read as expressing some defensiveness about his obligations, because he began by emphasizing that the disclosure really wasn’t his fault: the disclosure had occurred, he said, “without direction from us (other than the subpoena itself).”  But the California subpoena was served after the motion to quash was filed in Michigan, and the threat to use the privileged information to exact concessions from Doe, and the subsequent filing of an amended complaint and other papers prominently displaying Doe’s name, seem to have been deliberate violations of the rule.  Coakley has not responded to my requests for information and for comment on my concerns.

Given how marginal his client's defamation claims against the Doe are, Coakley may have felt he had no choice but to skirt the ethical edge by violating this rule.  (The linked complaint, which was a draft attached to Coakley's demand letter, reflects a false name; by the time it filed the amended complaint, it had used the disclosure to identify the Doe and put that name in the complaint).  Coakley markets himself to potential clients by proclaiming his reputation as “a scrapper in protecting their  interests.”   As I see it, Coakley’s scrappiness took him a few steps too far in this case.

Cooley responded to the motion to quash by arguing, among other things, that the motion to quash was moot; Hermann’s responsive brief focused on the disclosure rule  and the trial judge agreed, ruling orally that the disclosed information was to be sequestered and delivered only to the Court for in camera examination, and that plaintiff’s papers naming the defendant were to be stricken from the record.

This ruling is important because it makes clear that the concept of rescindable disclosure extends beyond the situation when a party just provides privileged information in discovery because of its own carelessness, and includes deliberate disclosure by third parties who themselves may know that there is a possible claim of privilege but decide to produce anyway.  In the Dendrite context, the ruling means that all is not lost if the ISP discloses pursuant to a subpoena because the Doe has not been able to obtain a definitive ruling by the deadline in the subpoena.  In effect, the rule becomes that the subpoena deadline sets only the deadline for raising the First Amendment privilege objection, not the deadline for obtaining a ruling.

The Dendrite issue remains to be decided, of course, and because the case illustrates so well the need for Dendrite protections, we are preparing an amicus brief to express Public Citizen’s views on that subject.

Why Did Weebly Disclose So Readily?

Still, given the dangers of extra-judicial self-help that form one of the important reasons for the Dendrite rule, the fact that the judge in the Cooley case has clawed back the disclosure so that he can make the Dendrite determination does not eliminate concerns about Weebly’s premature disclosure.  I contacted Weebly’s leadership to try to understand their reasoning, and I give Richard Huffaker credit for being willing to discuss the matter with me — unlike Michael Coakley, who refused to respond to questions — and for providing some pretty candid reactions to the situation.  However, I found Weebly’s explanations contradictory, and its assurances about its supposed commitment to protect its customers unconvincing. My bottom line — Weebly is another web host that customers should avoid if confidentiality matters.

Weebly’s first point to me was that its email to Hermann saying that he could consider the subpoena “squashed at this point” really wasn’t intended to make any commitments — Hermann has been writing “over and over” about keeping his client’s identity private, and “I had no idea what he was talking about, so I said it’s ‘squashed for now’ just so he’d leave me alone.”

Weebly also said that after it got the California subpoena, it told Hermann that he would actually need to get a ruling from the judge quashing that subpoena no later than August 22, or it would have to obey the subpoena.  I have two problems with that — first, even the subpoena did not require compliance until August 25, and the information was furnished on August 17.  But more important, Weebly’s stance falls well short of the industry standard.  In our experience, responsible ISP’s, such as Google, and Yahoo!, and Twitter, will simply insist to parties sending them subpoenas that they won’t comply with subpoenas to identify users if a motion to quash is filed within a given period, normally about two weeks. 

Weebly also told me that the disclosure was made in part because Hermann gave shifting stories about whether the subpoena would be issued by a Michigan court or a California court.  I found that argument unconvincing. Hermann was plainly uncertain about the actual subpoena documents, but I could not find the shifting accounts.  And in any event, should discomfort with the Doe’s lawyer be a reason to shed the Doe’s privacy?

Next, Weebly said that its disclosures didn’t really matter because it did not provide the customer’s actual name, just an email address and various IP addresses.  This is not the first ISP that has rationalized subpoena compliance on such grounds.  I have got that line from Wikipedia twice, for example.  But this case shows why the argument is delusional. The Doe was a former student at plaintiff law school, and the same email address that he gave Weebly was one that he has used while in law school.  Thus, when plaintiff got the email address it was able to identify the Doe, and in fact it named the Doe in its amended complaint and cited his name throughout its opposition to the motion to quash.

Weebly’s final explanation to me struck me as the real reason, and it was perhaps the worst part of the explanation.  Huffaker said, the subpoena came in on a day when I was out of the office, we have a small staff, we work long hours, we don’t have a lawyer on staff, we don’t get many subpoenas, and we strongly resist requests to remove material at the request of the targets of its customers’ criticism.  All of this is understandable, and much of it praiseworthy, but to my mind, protecting customers’ privacy is also important, and if an ISP doesn’t have a lawyer, it has a responsibility to inform itself of the law governing subpoenas to identify customers and of the industry standard on responding to subpoenas.  Moreover, although legal representation can be expensive, Public Citizen often represents smaller ISP’s pro bono in opposing subpoenas when the plaintiff does not meet the Dendrite test.  Indeed, California has made it easy to fund the defense against subpoenas in these cases by passing a SLAPP-like law  [http://en.wikipedia.org/wiki/SLAPP]providing for awards of attorney fees; and Hermann made a point of suggesting that angle.  Weebly says that it cares about protecting its customers, but it is hard to take those protestations seriously.  Potential customers of Weebly, beware.

Does California’s Law on Foreign Subpoenas to Identify Does Need a Tweak?

California took an important step to protect against improper subpoenas in support of cases pending elsewhere by authorizing SLAPP-like attorney fee awards in sections 1987.1 and .2 to its Code of Civil Procedure, but Weebly’s reaction to the Cooley subpoena, and Cooley’s arguments in the case, point up the need for further procedural reform.

Just as California has changed the procedure for obtaining a subpoena in aid of foreign proceedings to make easier for attorneys from other states to come to California to obtain process in aid of their proceedings back home, without even obtaining local counsel, it should consider making it easier for the opponents of such discovery to oppose it if inappropriate.   Cooley argued that the motion to quash pending in Michigan was irrelevant because it had obtained a California subpoena and only a California court could quash that.  My guess is that a California judge would have rejected that argument — most jurisdictions in which foreign discovery pending are only too happy to let a judge in the forum state do the work of deciding relevance questions, and when I am representing a Doe, I usually find it possible to express my concerns to smaller ISP’s, even those which, like Weebly, do not have lawyers on staff, sufficiently forcefully to get them to give my clients time to get into court even if I cannot get an immediate ruling.  However, Does who are represented by solo practitioners need to be able to point out clear language. The statute should make clear that a party opposing discovery is entitled to move to quash in the forum state, just as a party opposing discovery in federal court has the choice of seeking a protective order from the forum district or from the court where the discovery is sought under Rules 26(c)(1) or Rule 45(c)(3)(A).   

The statute should also provide that the deadline set by a subpoena to identify an anonymous speaker is automatically extended by such a motion, in either the forum court or the issuing, pending further order of that court.  The big ISP’s have the toughness and experience to assume that posture, but smaller ISP’s might benefit from language in the statute.  In the alternative, California might consider adopting the approach taken under federal Rule 45(c)(B), under which the service of written objections is enough to cancel the duty to comply with the subpoena, putting the burden on the plaintiff to obtain an order from a judge commanding compliance.  It is crucial, however, that the Doe be able to serve such objection, not just the ISP, because experience has shown that most ISP’s regard themselves as no more than stakeholders on the merits of such controversies.

Final note: I tend to think of all the college and law school ratings as a pile of hooey. My own alma mater began refusing to participate in the US News ranking in the mid 1990's, after the Wall Street Journal publicized the ways in which many institutions were manipulating data to change their numerical rankings.  Thus, I feel some gratitude to Cooley for taking this nonsense to its logical extreme. In its own way, Cooley’s spurious ranking scheme points out the inherent subjectivity of decisions about what numbers should be counted and calls into question any effort to reduce the relative merit of complex institutions to a numerical ranking.   Still, I recognize that potential students pay attention to numerical ratings from supposedly more reputable sources, however foolish they may be, and so I join my colleagues in condemning Cooley’s manipulation of statistics.



http://pubcit.typepad.com/clpblog/2011/09/thomas-cooley-law-schools-attack-on-a-critics-anonymity-hits-some-snags.html



 
 
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The odds are about 50-50, I’ll wager, that what used to be known as the
“Streisand Effect,” [ http://en.wikipedia.org/wiki/Striesand_effect ] within a
decade or even less will become widely known as the “Cooley Effect,”
after a cautionary tale involving Michigan’s Thomas M. Cooley Law
School.

That tale presently is unfolding, in a Lansing, Michigan court and now in the
media. The impending spectacle promises great entertainment value for lawyers and
non-lawyers alike, far beyond the borders of our state.

Why is Cooley Law School in court? Well, because a pseudonymous Internet
blogger, who attended Cooley (but, like many Cooley students, moved on to other
things), published some unflattering opinions about the school. The blogger,
identified only as “Rockstar05,” attracted a handful of comments, expressing
agreement, from other sympathetic pseudonymous posters. The content of what the
blogger actually said does not matter so much as the Cooley administration’s
amateur-hour reaction to the public expression of those opinions.

In its lawsuit, Cooley demands the usual remedies for which litigants
customarily pray in lawsuits – injunctive relief and money damages – as if some court
actually can put the shaving cream of free expression back in the can, at this point.

Setting aside the usual posturing, Cooley principally seeks to “out” the blogger,
and other Internet posters, presumably because revelation of their identities is viewed
as a potential vehicle to discredit opinions which, conveniently, happen to be
reproduced in Cooley’s own court filings, for the benefit of posterity. Whether the
outing strategy succeeds, or backfires, depends in part not only on whether Cooley
succeeds or fails in unmasking Rockstar05 (and Cooley stands a good chance to fail
at that venture), but also on what the blogger’s identity turns out to be, if revealed.
Without knowing in advance who the blogger is, it would seem that there’s at least
as much chance that revelation of his or her identity will increase sympathy for the
blogger’s message, as the likelihood that sympathy might decrease in any meaningful
way. Most likely, the identity information won’t matter much one way or the other,
at the end of the day, to the impact of the blogger’s message, even if revealed.

Perhaps, Cooley also is pursuing a “general deterrence” strategy, and hoping
that the prospect of further expensive litigation, against even more defendants, will
cut down on the future volume of “me, too” postings, by additional voices, supporting
the views of Rockstar05.

Perhaps. Or, alternatively, perhaps additional critics will instead emerge, who
are adept at using a somewhat more subtle and elegant choice of words, to deliver an
even more devastating critique. And who can rule out the prospect that large number
of new Rockstar05 supporters, both anonymous and self-identified, will elect to start
posting so many “me, too” messages, in a variety of fora, to make it pointless for
Cooley to hope to sue them all? It doesn’t take too much imagination, having seen
enough similar episodes play out on the Internet, to see where things are heading.

To be fair, this is not necessarily just about some random blogger. Cooley also
apparently has some concerns about a New York class action law firm, that has
started making inquiries about lining up prospective class representatives for potential
litigation against Cooley. Whether that litigation materializes, remains to be seen.

Now, in contrast to some others already in the debate (including the Cooley
administration, itself), I’m not particularly interested in deriding the academic quality
or educational value of any law school, or of offering any opinion on whether one of
them is better than any other. Personally, I count many Cooley graduates among my
valued friends and professional colleagues.

I will respectfully suggest, however, that “truth in admissions” standards ought
to apply broadly not only to all law schools, but to higher education, generally – in
much the same way that the 1933 Securities Act and state Blue-Sky laws regulate
prospectuses prepared for securities investors. After all, for many students,
borrowing tens or hundreds of thousands of dollars to go to college or graduate
school is one of the most important investments they ever will make in their lives.

Student loans, in June 2010, surpassed revolving credit (mostly credit cards)
in terms of the total amount borrowed. Many student loans are bundled in batches,
securitized, and sold off to investors, in ways similar to the preparation of the
mortgage-backed CDOs about which we’ve all heard so much in the news, lately.
That is not necessarily to say that securitized bundles of student loan obligations are
just the same as the investment vehicles that brought down Lehman Brothers and
nearly tanked AIG. But default rates on student loans certainly are growing. And while
that result may be alarming for investors, just think how borrowers whose
student debts are not dischargeable in bankruptcy, might view the situation.

Some people, but far too few, were asking the right questions about the housing
bubble, before it collapsed. Some critics, like PayPal co-founder and Silicon Valley
venture capitalist Peter Thiel, presently are sounding the alarm about their view that
higher education is the next bubble about to collapse. Only time will tell whether
today there are too many such critics, or too few.

Is it fair to compare institutions of higher education to subprime-focused
mortgage brokers such as Countrywide, or certain school administrators personally
to former Countrywide CEO Angelo Mozillo? Perhaps not, and even Rockstar05
does not appear to have ventured such a direct comparison. But the temptation to do
so may potentially become much greater, for a great many educational institutions in
many states, and for a great many of the people profiting off of these schools’
business operations, if Thiel’s (and many others’) predictions turn out to be correct.

I think it is fair for any prospective student, applying to law school, to expect
candid and accurate answers to all the following questions from each of the schools
to which they might apply:

• Of the students who borrow money to attend your institution, how many
of them actually graduate with degrees and secure law licenses? What
happens to those who do not, and what is the loan default rate over time
for such students?

• Of the graduating students who you report as having post-graduation
employment, how many of them actually have jobs lined up at the time
of graduation, to deliver legal services as lawyers? Within one month
after graduation? Six Months? One year? Two years?

• How many of the students who have graduated from your school, at the
one (1), five (5), and ten (10)-year marks, continue to work as legal
services professionals?

•What is the statistical compensation distribution, at the one (1), five (5),
and ten (10)-year marks (i.e., what does the 20th percentile take home,
the 50th, the 90th, 95th, and 99th), among graduates of your school who
work as legal services professionals?

• Compared with the number of graduates that you turned out between
seven (7) and fifteen (15) years ago, how many presently occupy high-
paying partnership positions at “top” law firms? How many actually are
highly-compensated for performing legal services using their law
degrees, whether or not in such a position?

• Of the students who borrowed more than half their tuition to attend your
school (as opposed to having the means to afford it some other way),
and who graduated between seven (7) and fifteen (15) years ago, how
many presently occupy high-paying partnership positions at “top” law
firms? How many actually are highly-compensated for performing
legal services using their law degree, whether or not in such a position?

• What correlation is there, if any, between high academic performance at
your school, and later occupying such a highly-compensated position?
What is the correlation between graduates who borrow little or no
money to afford to attend your school, and their later professional
compensation and overall gross income levels?
And the list could go on.

Not only do I respectfully suggest that such information ought to be available,
but that prominent disclosure of accurate, reliable, and candid information, would
have a variety of beneficial effects in the marketplace for legal education. If some
schools close as a result, I cannot say that would necessarily be a bad thing. I
understand that there’s unfulfilled demand for good engineers, these days, not only
in the engineering field, but also from investment banks.

Let’s all be honest: There is no shortage of lawyers or law students, but a glut
of them. The vast expansion in the number of seats to fill, at law schools collectively,
all over the country, has not been driven by any equivalent increase in the number of
paying clients requiring legal services, or in aggregate market demand for lawyers’
skills. It has been driven, instead, by a completely different kind of demand – not
entirely unlike the demand for American Idol audition slots. The demand driving the
proliferation of law schools (including Cooley campuses) is demand from students
and applicants (all of whom, when applying, envision themselves at the top of their
classes, and later, the top of the profession), for a shot at becoming a lawyer.

I’m not presently aware of any law school that actually is fully candid with
incoming and prospective students, about what school administrators know about
students’ in-school and post-graduation experiences with the field of law.

Cooley, of course, presents a particularly interesting case, but it is not
necessarily entirely unique. Among other notable public relations and admissions-
related information adventures by the Cooley administration, is their annual
publication for the last 12 years of “rankings,” purporting to compare Cooley
objectively with its competitors. Personally, I’m no fan of any “rankings,” generally,
but Cooley’s annual efforts to project a public image as a disinterested arbiter of what
law school rankings ought to be assigned, belong in a category of communication
previously occupied almost exclusively by Rupert Murdoch businesses and tobacco
companies. According to the 2010 “Cooley Rankings” published by Thomas E.
Brennan, the founder and former president of Cooley, and by Don LeDuc, Cooley’s
current President and Dean, schools like Yale, Georgetown, Columbia, Texas, and a
nearby law school in Ann Arbor, have nothing on Cooley. Rather, according to
Brennan and LeDuc, Cooley is number 2 in the country, right behind Harvard.

So, with those “fair and balanced” rankings in mind, no doubt it is galling to
Cooley’s administration that Rockstar05, after spending some time as a Cooley
student, would be somewhat less-than-enthusiastic about sharing the views of
Brennan and LeDuc, about the Cooley value proposition.

But the Georgetown and Michigan Law School graduates hired by Cooley, to
file Cooley’s lawsuit, are hardly the first or the only lawyers, to have a client walk
through their door upset about something published on the Internet.

I personally have advised such clients and prospective clients, from time to
time, over the years.

And I cannot remember ever offering the advice that such a client might be
better off in court, squaring off as Goliath against a blogger’s David.

There are far too many counter-examples. Don’t just ask Barbara Streisand,
but also Amsterdam-based energy company Trafigura, and a host of others, how their
lawsuits turned out.

Mere hyperbole is not enough, in the age of the Internet, for an idea (what
biologist Richard Dawkins would call a “meme”) to rise to prominence and “go
viral.” With rare exceptions involving spectacular new levels of excess – such as
columnist Dan Savage’s rebranding of the word “Santorum” – most extreme, pointed,
or even critical, rhetoric on the Internet is drowning is a sea of hyperbole – virtually
all of it remaining little-noticed and quickly forgotten. Rockstar05 certainly did not
say anything so noteworthy or special, that it might be viewed as likely to “go viral”
without Cooley’s own active intervention and assistance.

Failing to dignify Rockstar05 with any response at all, would have been a
perfectly legitimate strategy for Cooley to employ, to help keep Rockstar05’s
audience as small as possible. Some companies even have taken things a step further,
and sought the advice and help of Internet critics, to improve their products and
services –-and, ultimately, to improve customer satisfaction. There’s much to be said
in favor of a diplomatic, discrete, and conciliatory approach.

In contrast, there are four reasons why a lawsuit seeking to suppress Internet
speech such as the one Cooley filed, is likely to boomerang. And four reasons why
Cooley is likely already to have make itself the subject of another cautionary tale.

First, as mentioned above, no single factor seems to catapult an otherwise-
obscure meme on the Interent, into widespread prominence, than the initiation of a
lawsuit. Lawsuits often are filed to get someone’s attention, and they do. When the
Internet is involved, lawsuits tend to attract attention from far more people than just
the intended audience. This factor is particularly likely to kick in, when one of the
parties easily is identified as engaging in some kind of expressive activity, and the
other can be portrayed as filling the role of self-appointed censor. Audiences find this
narrative especially compelling, and the compelling narrative drives interest.

Second, the filing of the lawsuit, and other events that happen along the way
while the lawsuit progresses, tend to serve as a “hook” for news media. The mere
publication of some remarks by a random blogger, rarely is viewed as a newsworthy
event, and rarely triggers any secondary coverage. The filing of a lawsuit, or some
other court document, on the other hand, potentially can trigger the unintentional viral
multiplication of an Internet meme, and repeatedly has been observed to do so,
precisely because journalists have been trained to view such a “hook” as the very
thing that makes a story (or hundreds of stories, all over the Internet) possible.

This risk of information contagion is vastly increased when a bigger issue or
idea impacting a large number of people – such as, perhaps, the story that a “student
loan bubble” allegedly is on the verge of bursting – also just happens to be primed to
explode into the public consciousness. Media outlets constantly are on the lookout
for an illustrative example, to help explain a broader emerging phenomenon that
requires more and better coverage. Patent policy, for instance, is pretty dry as a
subject for audience consumption, but an anecdote about a lawsuit by Intellectual
Ventures, or a related company, can provide just the right additional ingredient, to
trigger both coverage and widespread audience interest.

No doubt, Cooley’s administration does not want their school to get caught up
in a hypothetical “student loan bubble” conflagration of unwelcome media coverage,
if or when that story ever takes off.

One way to reduce the risk of inclusion in such a firestorm of controversy, is
to exercise self-restraint, and not to throw off public-relations “sparks,” in an already-
combustible environment. People today do not remember the names of too many of
Mrs. O’Leary’s neighbors, whose methods of construction made the Great Chicago
Fire both possible, and difficult to contain. But we all certainly do remember,
generations later, whose cow allegedly kicked over the lantern that started it all.

And if the fire inevitably is going to start sooner or later, better to let someone
else’s cow kick over the lantern. Don’t let your lawyers be remembered for
generations due to their presence near the flash-point.

The third issue to be concerned about is the possibility that the initiation of a
lawsuit might just motivate additional commentators and actors to leave the sidelines,
and to enter the field of debate or action. Worst of all, for the target of negative
Internet comments, is the prospect that a lawsuit against a critic easily portrayed as
shrill or hyperbolic, to whom few would have been inclined to listen, might motivate
multiple, more moderate and more persuasive, voices to enter the debate, and to point
out that the blogger actually might just have a point that requires additional attention.

In this case, whatever views one may have about the particular words chosen
by Rockstar05 (and they do not actually appear to be especially shrill or hyperbolic,
at least compared with much of what passes for debate on the Internet today), the
underlying point about the value proposition of many institutions of higher education
(not just Cooley), appears to merit serious and thoughtful consideration. Moreover,
Cooley’s own transgressions in the marketplace of ideas (number 2 – really???),
simply cannot be overlooked. The antidote for bad information in the marketplace
of ideas is not the censorship of disfavored messages, but more and better speech in
rebuttal.

Finally, the fourth concern about litigation in this context, is the potential that
the wider audience might feel greater sympathy for the litigation target, than they
might in the absence of what is commonly viewed as an aggressive action by the
plaintiff. Particularly if the audience feel that their own access to information might
be in jeopardy (for instance, if they feel they have the right to know about injuries to
Abidjan residents, allegedly due to toxic waste disposal in the Ivory Coast, but a
lawsuit prevents the Guardian from delivering the news), then the audience will often
tend to feel sympathy for the defendant. In essence, it is much easier to dismiss
Rockstar05 as a crank (whether that characterization is justified or not), if you are not
on record as viewing his or her remarks so seriously that you are willing to pay to
have a lawsuit filed, in an effort to suppress his or her expression. In a very important
sense, the dramatic step of filing the lawsuit, tends to give the expression in question
more credibility, rather than discrediting it, precisely because the message is seen as
being taken so seriously.

I think it is fair to say that, by the time this entire episode concludes, the vast
majority of people who elect to say something about it, will be voices who joined the
debate precisely because Cooley filed its lawsuit, and who otherwise would have
ignored the controversy entirely. Some of those voices will turn out to deliver even
more effective critiques both of Cooley’s value to students/customers, and of its litigation
strategy, than Rockstar05 ever could have hoped to achieve all by himself
or herself. In short, this episode promises to become the classic and textbook
example of how litigating about an Internet critic is precisely the wrong strategy to
pursue, and much more likely than not to boomerang in a dramatic, memorable (and,
for many bystanders, entertaining) way. Thanks, Cooley, for teh lulz!

Copyright © 2011 Eric C. Grimm.
Some rights reserved.
Creative Commons BY-NC-SA License 3.0
Electronic Frontier Foundation Attorney (University of Michigan)
 http://www.whcfirm.com/ourlawyers/ericgrimm.html