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This case involves a claim by a professor of pathology involving Internet defamation, which he claims cost him his employment at the University of Mississippi. The University cited some anonymous posts in an online forum as a reason for terminating Dr. Sarkar employment resulting in a lawsuit and a quest to uncover the identity of the anonymous posters. The case made its way to the Court of Appeals of Michigan. The Court"s opinion follows. Domingo J. Rivera
This case involves a claim by a professor of pathology involving Internet defamation, which he claims cost him his employment at the University of Mississippi. The University cited some anonymous posts in an online forum as a reason for terminating Dr. Sarkar employment resulting in a lawsuit and a quest to uncover the identity of the anonymous posters. The case made its way to the Court of Appeals of Michigan. The Court”s opinion follows. Domingo J. Rivera
318 Mich.App. 156
897 N.W.2d 207
Docket Nos. 326667
Court of Appeals of Michigan.
Submitted Oct. 4, 2016, at Detroit**.
Decided Dec. 6, 2016, at 9:00 a.m.
[897 N.W.2d 210]
Before: FORT HOOD, P.J., and GLEICHER and O”BRIEN, JJ.
The issues presented in these appeals boil down to one simple question: Are the identities of anonymous scientists who comment on other scientists” research online protected by the First Amendment?
I. FACTUAL AND PROCEDURAL BACKGROUND
According to his complaint, plaintiff, “Fazlul H. Sarkar, PhD, is a distinguished professor of pathology at Karmanos Cancer Center, Wayne State University with a track record of cancer research over 35 years.“1 Sarkar began his research at Wayne State University in 1989, and “his work has led to the discovery of the role of chemopreventive agents in sensitization of cancer cells (reversal of drug resistance) to conventional therapeutics (chemo-radio-therapy).” Dr. Sarkar alleges that “[h]e is a perfect example of a true translational researcher bringing his laboratory research findings into clinical practice,” that he “is involved in several collaborative projects including breast, lung, and pancreatic cancer,” that “ [h]e has published over 430 original scientific articles in peer-reviewed journals,” that he has written or reviewed hundreds of articles and book chapters, that he has edited several books, that he has received numerous publicly funded grants, and that he has trained a variety of pre- and post-doctoral students. In short, it appears undisputed that he is well-accomplished in the cancer-research community.
It is presumably these accomplishments that led to Sarkar pursuing employment with the University of Mississippi in 2013. According to Sarkar, the University of Mississippi presented him with the “anticipated terms of an offer of a position” in September 2013, which set forth several terms of employment, including, most notably, tenure, a $350,000 salary, $15,000 in relocation expenses, “[a] start up package of $750,000,” and a variety of other benefits. In March 2014, the University of Mississippi formally offered him this position, Sarkar accepted, and he resigned from Wayne State University approximately two months later. Sarkar relocated to Oxford, Mississippi, shortly thereafter and was set to begin his employment with the University of Mississippi in July 2014. At some point, however, “his start date was adjusted to August 1, 2014 per later agreement and approval.”
On June 19, 2014, however, the University of Mississippi rescinded Sarkar”s offer of employment. According to Sarkar, the University of Mississippi was unwilling to “go forward with an employment relationship with [him] and [his] group” because of “allegations lodged in a public space and presented directly to colleagues [there].” In pertinent part, the University of Mississippi cited public comments made on pubpeer.com, which were apparently made known to the University of
[897 N.W.2d 212]
Mississippi by an anonymous individual.2 After losing this employment opportunity with the University of Mississippi, Sarkar attempted to rescind his resignation with Wayne State University the following day, and Wayne State University allowed him to return, albeit in a nontenured position. After Sarkar learned he would be returning to Wayne State University, however, either the same or a different anonymous individual also distributed a flyer containing a screenshot from pubpeer.com to Wayne State University personnel.3
Obviously unhappy with the outcome of his employment offer with the University of Mississippi, the comments on pubpeer.com, and the distribution of the flyer to Wayne State University personnel, Sarkar pursued a variety of legal remedies, including this lawsuit. On October 9, 2014, Sarkar filed this five-count lawsuit against defendants, “John and/or Jane Doe(s).” Sarkar alleged, in pertinent part, that the comments made on pubpeer.com were defamatory, that the comments made on pubpeer.com and forwarded to the University of Mississippi intentionally interfered with a business expectancy, that the comments made on pubpeer.com and forwarded to Wayne State University intentionally interfered with a business relationship, that the posting of an e-mail from Wayne State University personnel on pubpeer.com and in public constituted an invasion of privacy, and that the circulation of the flyer was intended to inflict emotional distress.
In an attempt to learn the identities of the individual or individuals who were responsible for the actions at issue, Sarkar subpoenaed the records of appellant, PubPeer Foundation (PubPeer), the entity that operates pubpeer.com, seeking the following: “All identifying information, including but not limited to user names, IP addresses, email addresses, profile information, and any other identifying characteristics of all users who have posted any of the comments that were posted on your web site that are described in the attached complaint that was filed in Wayne county, MI.” Although somewhat unclear from his complaint and subpoena, it appears that Sarkar sought 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.
Specifically, PubPeer argued that, in order to unmask the identity of the anonymous commenter or commenters, Sarkar was required to prove that his claims could survive a motion for summary disposition. Asserting that Sarkar had failed to do so, PubPeer argued that the trial court should quash the subpoena.4
[897 N.W.2d 213]
Analyzing each comment at issue, PubPeer also argued that Sarkar failed to adequately plead the allegedly defamatory comments, that the allegedly defamatory comments were not capable of defamatory meaning, that the communications sent to or distributed at the universities were insufficiently connected to PubPeer, and that the balance of interests in this case favored preserving scientists” ability to anonymously comment on other scientists” research.
Sarkar responded, arguing that “[t]his case is not about free speech.” Rather, he asserted, “[i]t is about tortious conduct that is destroying a man”s life and career.” Sarkar described the anonymous commenter or commenters as “an enemy [or enemies] hiding behind the anonymity afforded by the internet” who is or are “sabotaging” his career. Sarkar, relying on the fact that one John Doe had already filed an appearance, argued that no preliminary showing was required and that, at best, the appearing John Doe could seek a protective order on behalf of himself. Sarkar also argued that his complaint was adequate, that he had alleged torts beyond defamation, that the confidential nature of misconduct proceedings had been breached, that the comments at issue were defamatory, and, ultimately, that disclosure of the commenters” identities was necessary to seek the legal remedy to which he was entitled.
A hearing on PubPeer”s motion to quash was held on March 5, 2015. After hearing arguments similar to those already discussed, the trial court granted, in part, PubPeer”s motion to quash.5 Specifically, the trial court granted the motion in full with the exception of one subparagraph in Sarkar”s complaint: Paragraph 40©. The trial court reserved its ruling on Paragraph 40© for a later date after the parties were afforded additional time for supplemental briefing. A second hearing on PubPeer”s motion to quash was held two weeks later on March 19, 2015. After reviewing the parties” supplemental briefs and hearing additional argument, the trial court denied PubPeer”s motion to quash with respect to Paragraph 40©.6 These appeals followed. On April 20, 2015, the trial court granted PubPeer”s motion to stay proceedings pending the outcome of these appeals.
II. ARGUMENTS ON APPEAL
Generally, we review for an abuse of discretion a trial court”s decision on whether to compel discovery. Cabrera v. Ekema, 265 Mich.App. 402, 406, 695 N.W.2d 78 (2005). We review de novo however a trial court”s decision to grant summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Similarly, constitutional issues, including the application of the First Amendment, are also reviewed de novo. Smith v. Anonymous Joint Enterprise, 487 Mich. 102, 111-112, 793 N.W.2d 533 (2010).
[897 N.W.2d 214]
A. THE APPROPRIATE STANDARD
Sarkar first argues that the trial court”s March 9, 2015 order must be reversed because the court erred by allowing PubPeer, a nonparty, to argue standards for summary disposition. Relatedly, Sarkar also argues that the trial court erroneously heightened the pleading standard for defamation as well as erroneously refused to consider a protective order pursuant to MCR 2.302. Ultimately, these arguments are each part of Sarkar”s ultimate position before the trial court and before this Court on appeal: Sarkar argues that Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich.App. 245, 833 N.W.2d 331 (2013), not Ghanam v. John Does, 303 Mich.App. 522, 845 N.W.2d 128 (2014), controls the outcome of this case. We will address each case in turn, as well as their application to this matter.
After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley”s case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with [the speaker”s] name on the complaint. But Michigan law does not address only these polar opposites. [The speaker] also asked for a protective order under MCR 2.302©. The trial court”s order indicates that it denied [the speaker”s] requests for a protective order “for reasons stated on the record.” But the trial court did not state any reasons on the record to deny the protective order. The trial court appears not to have considered whether or to what extent to protect [the speaker”s] identity after it determined not to quash the subpoena. On remand, the trial court should consider whether good cause exists to support [the speaker”s] request for a protective order.
Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was incorrect. Not all accusations of criminal activity are automatically defamatory. To put it simply, defamation per se raises the presumption that a person”s reputation has been damaged. In that instance, a plaintiff”s failure to prove damages for certain charges of misconduct would not require dismissal of the suit. Whether a plaintiff has alleged faultwhich may require the plaintiff to show actual malice or negligence, depending on the status of the speaker and the topic of the speechconcerns an element separate from whether the plaintiff has alleged defamation per se. Thus, the trial court erroneously concluded that Cooley would not have to prove fault or other elements because the statements were defamatory per se.
More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whether to issue a protective order. As noted above, a trial court may consider that a party seeking a protective order has alleged that the interests he or she is asking the trial court to protect are constitutionally shielded. But the trial court need not, and should not, confuse the issues by making a premature rulingas though on a motion for summary dispositionwhile considering whether to issue a protective order before the defendant has filed a motion for summary disposition. The trial court should only consider whether good cause exists to issue a protective order, and to what extent to grant relief under MCR 2.302©.
[The speaker] urges this Court to rule that Cooley has not pleaded legally sufficient claims for defamation and tortious interference with a business relationship. We conclude that [the speaker”s] motion for a protective order did not present the appropriate time or place to do this. These rulings are best made in the context of a motion for summary
[897 N.W.2d 216]
disposition, when the trial court is testing the legal sufficiency of the complaint. The trial court”s only concerns during a motion under MCR 2.302© should be whether the plaintiff has stated good
cause for a protective order and to what extent to issue a protective order if it determines that one is warranted. [id. (citations omitted).]
At https://pubpeer.com/publications/2D67107831BCCB85BA8EC45A72FCEF, another discussion takes place among anonymous posters, accusing Dr. Sarkar of “sloppiness” of such magnitude that it calls into question the scientific value of the papers. The comments further demand a “correction” with a “public set of data to show that the experiments exist,” falsely stating that the data were false and that the experiments were fabricated.
An unregistered submission on the URL as # 44 above doubts that the authors have taken “physics” and that they have decided to “show the world” fabricated
data. The same, or perhaps a different unregistered submission concludes: “One has to wonder how this was not recognized earlier by the journals, reviewers, funding agencies, study sections, and the university. Something is broken in our system.”
At https://pubpeer.com/publications/21680704, “Inactivation of AR/TMPRSS2-ERG/Wnt signaling networks attenuates the aggressive behavior of prostate cancer cells, ” accusations include “no vertical changes problematic,” and “same image.”
On July 24, 2014, at https://pubpeer.com/publications/22806240, “Activated K-Ras and INK4a/Arf deficiency promote aggressiveness of pancreatic cancer by induction of EMT consistent with cancer stem cell phenotype, ” a comment made from “Peer 3” contains the comment “There seems to be a lot more honest errors” to correct,” with the quotes communicating that they were not honest errors.
The dialogue set forth in # 49 above urges the PubPeer “community” to target Dr. Sarkar, and contains a false statement, as the Plaintiff has previously replied to PubPeer comments [November 10, 2013 submission apologizing for the inadvertent error and promising a correction at this page: https://pubpeer.com/publications/170E31360970BE43408F4AC52E57FD, “CXCR2 Macromolecular Complex in Pancreatic Cancer : A Potential Therapeutic Target in Tumor Growth. “]
The interaction between anonymous posters in the paragraphs above suggests that multiple users are independently conversing about Dr. Sarkar and making false accusations about him. On information and belief, these are from the same person pretending to have a dialogue with someone else, or persons working in concert.
For example, a “dialogue” between two allegedly different posters took place on July 24, 2014. These posters, “Peer 1” and “Unregistered Submission,” each posted in the
middle of the
[897 N.W.2d 222]
night, one responding to the other just 56 minutes later. See: https://pubpeer.com/publications/A3845DA138FC83780CB5071ED74AEC, “Concurrent Inhibition Of NF-Kappab, Cyclooxygenase-2, And Epidermal Growth Factor Receptor Leads To Greater Anti-Tumor Activity In Pancreatic Cancer.” This is either a very odd coincidence that two scientists were independently reading the same page regarding Dr. Sarkar (in the example stated in this paragraph, a page regarding a 2010 paper that at the time had only had 151 views)on the same day, in the middle of the night; or drawing a reasonable inference from these facts, it”s the same person feigning a dialogue; or two persons working in concert with one another.
These probably fake dialogues are an attempt to falsely communicate that there are more scientists concerned about Dr. Sarkar, and more persons communicating accusations, than there actually are. This is significant because there are so many criticisms of Dr. Sarkar that rely on the sheer number of PubPeer comments as an indication that he must be engaged in misconduct. See, for example, the examples cited at paragraphs 40(d) and 48, above.
Another example of a tactic to artificially increase accusations of misconduct is to make a single comment on old papers. Similar to what is stated in paragraph 53 above, this too is significant because there are so many comments that rely on the sheer number of papers with comments on PubPeer (as opposed to the total number of comments, cf. ? 53) to indicate misconduct:
a. There are two comments at this page: https://pubpeer.com/publications/5A875EBFF7D16C8CCE342257412E5B, “B-DIM Impairs Radiation-Induced Survival Pathways Independently Of Androgen Receptor Expression and Augments Radiation Efficacy in Prostate Cancer. ” These two comments are in April and July, 2014, concerning a 2012 paper with no previous comments. This indicates someone intentionally seeking to increase the number of papers with comments on PubPeer.
b. Below is a comment simply inviting the reader to perform a search on Dr. Sarkar, at https://pubpeer.com/publications/58FE2E47C6FEB3BE00367F26BF7A83, “P53-Independent Apoptosis Induced By Genistein In Lung Cancer Cells.” The comment has nothing at all to do with that 1999 paper, but instead is intended for the reader to search and see how many of Dr. Sarkar”s papers have been commented about on PubPeer:
(April 21st, 2014 1:33am UTC)
c. Another comment was made on July 24, 2014 at 7:04 AM from “Peer 1” at https://pubpeer.com/publications/997E578FC0B61F6BAE1974D4051157, “Mitochondrial Dysfunction Promotes Breast Cancer Cell Migration and Invasion through HIF1a Accumulation via Increased Production of Reactive Oxygen Species.” This doubled the amount of comments on this 2006 paper.
d. A July 13, 2014 comment was made about a 2005 paper that previously had no comments: https://pubpeer.com/publications/6B44D6D4111B59BAB78E642C8D1758, “Molecular Evidence for Increased Antitumor of Gemcitabine by Genistein in Vitro and in Vivo Using an Orthopedic Model of Pancreatic Cancer.”
e. All told, there are 42 papers with Dr. Sarkar as lead researcher that have
[897 N.W.2d 223]
garnered only one comment on PubPeer, many of them extremely recent comments on relatively old papers.
(July 13th, 2014 6:26pm UTC)
Compare Fig. 3B and Fig. 3D [AT http://cancerres.aacrjournals.org/content/65/19/9064.full.pdf+html]
When Colo357 lane for 0 and 25 in 3B is flipped it looks similar to the control and genistein in Fig. 3D for Colo357.
a. In this discussion, “Peer 1”s” commentary begins with an invitation for the reader to compare certain illustrations with others. But then an unregistered submission links to another page, where someone sarcastically asserted that a paper “[Used] the same blot to represent different experiment(s). I guess the reply from the authors would be inadvertent errors in figure preparation.”
b. Perhaps that same unregistered submission complains, “You might expect the home institution to at least look into the multiple concerns which have been rasied.” (sic) This statement is defamatory. Given the regulatory scheme described above that requires such investigations only where there are “good faith” complaints of “alleged research misconduct” [deliberate fabrication, falsification, or plagiarism], this unknown author has accused Dr. Sarkar of deliberate misconduct.
d. The discussion that follows attack”s [sic] Dr. Sarkar”s character and expresses an invitation for his current employer (Wayne State), his potential future employer (the University of Mississippi), the National Institute of Health, and even the Department of Defense to investigate and take negative action against Dr. Sarkar:
(June 19th, 2014 1:11pm UTC)
Talking about the Board of Governors, see this public info
(June 19th, 2014 7:52pm UTC)
“currently funded by five National Institutes of Health RO1grants”
That probably works out at about $200k per PubPeer comment. I should think that NIH must be pretty happy with such high productivity.
(June 20th, 2014 9:44am UTC)
just letting you know that the award for doing what he/she allegedly did is
[897 N.W.2d 225]
promotion a prestigious position at a different institution. Strange http://www.umc.edu/newsandpublications/thisweek.aspx?type=thisweek&date=6®9®2014 [link is to the University of Mississippi site announcing Dr. Sarkar”s hire ]
(June 20th, 2014 5:30pm UTC)
The last author is now correcting “errors” in several papers. Hopefully he will be able to address and correct the more than 45 papers (spanning 15 years of concerns: 1999-2014), which were all posted in PubPeer.
(June 20th, 2014 6:39pm UTC)
From the newsletter:
“Sarkar has published more than 525 scholarly articles”
nearly 50 of which have attracted comments on PubPeer!
It”s not hard to imagine why Wayne State may not have fought to keep him. And presumably the movers and shakers at the University of Mississippi Medical Center didn”t know that they should check out potential hires on PubPeer (they just counted the grants and papers). I wonder which institution gets to match up NIH grants with papers on PubPeer.
It can only be a matter of time, grasshopper, but that time may still seem long. You saw it first on PubPeer.
(July 5th, 2014 12:58am UTC)
From a look at this PI”s funding on NIH website it seems this lab has received over $13 million from NIH during the last 18 years. An online CV shows he has received DOD funds as well, bring the federal fund total close to $20 million. Why isn”t the NIH and DOD investigating? The problems came to light only because they were gel photos. What else could be wrong? Figures, tables could be made-up or manipulated as well.
The problems on PubPeer is for about 50 papers-all based on image analysis. That is just 10% of the output from this lab (or $2 million worth of federal dollars). What about the other 90%? Sadly this is what happens when research output becomes a numbers game. An equivalent PI would be happy to have just 50 high impact papers properly executed, that moves the research field forward. This lab has 500; but now it will be very difficult to figure out the true scientific value of any of them. Sad!
(March 29th, 2014 11:20pm UTC)
[897 N.W.2d 226]
The last author has more than 20 papers commented in Pubpeer.
(March 30th, 2014 10:07am UTC)
“The last author has more than 20 papers commented in Pubpeer.”
He”s been very productive.
Presumably the journals know and his university knows. How long would it have taken for you to find out from them? Still counting.
(May 17th, 2014 7:38pm UTC)
An Erratum to a report this previous PubPeer comment has been published by the authors in Int J Cancer. 2014 Apr 15;134(8):E3. In the erratum, the authors state that: “An error occurred during the creation of the composite figure for Fig-5B (Rb) and Fig-6B (I?B?) which has recently been uncovered although it has no impact on the overall findings and conclusions previously reported”
Not so fast!
See additional concerns (band recycling, not addressed in Erratum) in Figure 4A and Figure 6; here:
Based on these issues, can we agree with the authors that “an ERROR occurring during the creation of the composite figures” and that these (and previous “errors”) have “NO IMPACT on the overall findings and conclusions previously reported”?
(July 23rd, 2014 6:37pm UTC)
FH Sarkar has never replied to any of the Pubpeer comments.
(July 23rd, 2014 10:31pm UTC)
but if we send our concerns to his institution and the journals involved, hopefully there will be changes
Assuming that these paragraphs are facially sufficient, we nevertheless conclude that they are also unable to survive a motion for summary disposition under MCR 2.116©(8). While we are unable to find any Michigan caselaw specifically addressing comments of this nature, other jurisdictions, both federal and state, have addressed similar issues on many occasions. In doing so, they have recognized “that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington v. Bugliosi, 56 F.3d 1147, 1156 (C.A.9, 1995).18
[897 N.W.2d 227]
true even if the speaker expresses his or her opinion anonymously. Cooley, 300 Mich.App. at 256, 833 N.W.2d 331. Each of these paragraphs reflects the speaker”s opinion based on underlying facts that are available to the reader. Specifically, Sarkar expressly admits in his complaint that the comment at issue in Paragraph 40(a) “begins with an invitation for the reader to compare certain illustrations with others,” the comment at issue in Paragraph 40(b) was in response to the same underlying facts as Paragraph 40(a), and the comment at issue in Paragraph 40(d) is in response to those underlying facts as well. Similarly, the comments at issue in Paragraphs 43, 48, and 49 are all also part of discussions based on underlying facts that are available on the same webpages on pubpeer.com. These are precisely the type of opinion statements that state and federal courts have consistently held are protected by the First Amendment, and we believe the same should be true in Michigan as well. Accordingly, summary disposition pursuant to MCR 2.116©(8) was appropriate with respect to Paragraphs 40(a), (b), and (d), 43, 48, and 49, and the trial court correctly granted PubPeer”s motion to quash in this regard.
c. PARAGRAPH 40©
In light of these conclusions, we are left with only one commentthat addressed in Paragraph 40©that Sarkar alleges is capable of defamatory meaning. Indeed, it is the comment addressed in this subparagraph, and only the comment addressed in this subparagraph, that the trial court concluded was capable of defamatory meaning, and it is this subparagraph that is at issue in PubPeer”s appeal in Docket No. 326691. Paragraph 40© of the complaint provides, in entirety, as follows:
c. Then an unregistered user (likely the same one, given the context) reveals that s/he is either a person at Wayne State University who made a formal complaint against Dr. Sarkar, or is otherwise
[897 N.W.2d 228]
privy to the a[sic] person who did so:
(June 18th, 2014 4:51pm UTC)
Has anybody reported this to this institute?
(June 18th, 2014 5:43pm UTC)
Yes, in September and October 2013 the president of Wayne State University was informed several times.
The Secretary to the Board of Governors, who is also Senior Executive Assistant to the President Wayne State University, wrote back on the 11th of November 2013:
“Thank you for your e-mail, which I have forwarded to the appropriate individual within Wayne State University. As you are aware, scientific misconduct investigations are by their nature confidential, and Wayne would not be able to comment on whether an inquiry is under way, or if so, what its status might be.”
“Thank you for bringing this matter to our attention.”
On appeal, Sarkar claims that the trial court”s decision with respect to Paragraph 40© was correct because the statement at issue “is a clear indication that [the speaker] is alleging that Dr. Sarkar committed research misconductwhich is a public accusation at the very heart of Dr. Sarkar”s case (and contrary to PubPeer”s denials that such an accusation was never made on their web site).” The trial court apparently agreed to an extent, opining that “there could be an inference that this was of a nature to attempt to defame Dr. Sarkar.” Ultimately, it appears that Sarkar argues and that the trial court concluded that these statementsin context and when coupled with the public disclosure of the Wayne State University e-mailare capable of defamatory meaning. We cannot agree with this reasoning.
The contents of the e-mail, even when released to the public, are no more defamatory than the other comments discussed in this opinion. It reflects, drawing inferences in a light most favorable to Sarkar, Cooley, 300 Mich.App. at 261-262, 833 N.W.2d 331, that the e-mail sender, i.e., the individual from Wayne State University, was “not able to comment on whether an inquiry [presumably a scientific misconduct inquiry] into your allegations is under way, or if so, what its status might be.” Other than reaffirming the intent of the speaker, i.e., the PubPeer commenter, the publication of this e-mail did not make any false assertions that were otherwise capable of defamatory meaning. As already stated in this opinion, “when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington, 56 F.3d at 1156. This is true regardless of whether the speaker later publicizes the actions that he or she took based on that subjective opinion. Accordingly, we disagree that the statements at issue in Paragraph 40© are sufficient to survive summary disposition or entitled Sarkar to learn the identities of the anonymous speakers. Accordingly, the trial court should have granted summary disposition and PubPeer”s motion to quash with respect to Paragraph 40© as well.19
[897 N.W.2d 229]
d. THE STATEMENTS AS A WHOLE
Sarkar additionally argues that, while the individual statements taken in isolation may not appear capable of defamatory meaning, a reasonable person reviewing the entirety of the comments regarding Sarkar”s research on pubpeer.com would find them defamatory. In essence, it is Dr. Sarkar”s position that all criticism of his research on pubpeer.com is defamatory and therefore not protected by the First Amendment. For similar reasons as those articulated with respect to Paragraphs 40, 43, 48, and 49, we conclude that the anonymous speakers” criticism of Sarkar”s research, even when reviewed as a whole and in the appropriate context, is not capable of a defamatory meaning.
As stated earlier in this opinion, the First Amendment protects an individual”s right to speak anonymously. Cooley, 300 Mich.App. at 256, 833 N.W.2d 331. However, defamatory statements are not entitled to this same protection. Ghanam, 303 Mich.App. at 534, 845 N.W.2d 128. “To be considered defamatory, statements must assert facts that are provable as false.” “ Id. at 545, 845 N.W.2d 128 (citation omitted).
Nevertheless, state and federal courts alike have consistently held that “when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington, 56 F.3d at 1156. That is, when a speaker presents a factual basis for the opinion he or she reached, the opinion is not capable of defamatory meaning. Id.
Applying those rules to the facts of this case, we cannot conclude that the comments made on pubpeer.com regarding Sarkar are capable of defamatory meaning. In short, Sarkar is asking this Court to hold that the anonymity of individuals who engage in critical discussions of his work is not protected by the First Amendment, and we simply cannot do so. Had this been a situation in which, for example, speakers had falsely stated that he was found guilty of research misconduct, our conclusion may well have been different. But that is not what is before us. Rather, the situation before us involves discussions between anonymous individuals who are, at least to some extent, critical of Sarkar”s research. At best, some of the speakers opine that Sarkar should be investigated for research misconduct, and their opinions in that regard are protected by the First Amendment. Indeed, their discussions repeatedly invite readers to review Sarkar”s research for themselves and reach their own conclusions, and we are not inclined to chill this type of constitutionally protected speech. Accordingly, we conclude that summary disposition is appropriate under MCR 2.116©(8) with respect to the comments made on pubpeer.com about Sarkar.20 For similar reasons, PubPeer”s motion to quash should have been granted in full.e. THE FLYER
As already indicated, we conclude that the statements posted on pubpeer.com that were identified in Sarkar”s complaint are not capable of defamatory meaning.
[897 N.W.2d 230]
Therefore, with respect to those statements, summary disposition pursuant to MCR 2.116©(8) is appropriate. However, the flyer that was allegedly distributed to Wayne State University personnel presents a different issue. According to Sarkar, the distributed flyer implied that he was under senatorial investigation when in fact he was not. Accepting that allegation as true, we agree that summary disposition pursuant to MCR 2.116©(8) with respect to Sarkar”s defamation claim based on that flyer is inappropriate at this time. With that being said, it is still necessary for us to determine whether, and to what extent, Sarkar is permitted to unmask the identities of commenters on pubpeer.com as it relates to that flyer, and it is our view that he is not entitled to unmask the identities of any of those commenters. Stated simply, there is no reasonable connection between the flyer and pubpeer.com. While the flyer included a screenshot of a webpage on pubpeer.com, pubpeer.com is a public website available to, literally, everyone. While Sarkar asks this Court to assume the flyer was likely distributed by someone who criticized his research on pubpeer.com and therefore unmask the identities of all the individuals who have commented on his research on that websitewe simply cannot do so. In short, individuals are entitled under the First Amendment to make anonymous statements, and the mere fact that someone later prints some of those anonymous statements and distributes them does not suddenly destroy that protection. Accordingly, we conclude that while Sarkar”s defamation claim may nevertheless proceed, he is not entitled to discovery from PubPeer in this regard.
B. EVIDENCE BEYOND THE PLEADINGS
On appeal, Sarkar also argues that the trial court”s March 9, 2015 order must be reversed because the court erred by considering affidavits, erred by making factual inferences against him, and erred by requiring the production of evidence. In essence, Sarkar argues that the trial court misapplied MCR 2.116©(8) under Ghanam. As stated earlier in greater detail, a motion for summary disposition under MCR 2.116©(8) may be filed “when the opposing party has failed to state a claim on which relief can be granted.” Cooley, 300 Mich.App. at 261, 833 N.W.2d 331. The motion “tests the legal basis of the complaint on the pleadings alone.” Id. This standard requires that all factual allegations made in the complaint be viewed in a light most favorable to the nonmoving party and accepted as true. Id. at 261-262, 833 N.W.2d 331.
1 All quotations in Section I of our opinion are from the pleadings submitted by the parties in the trial court. In reviewing a trial court”s decision on a motion for summary disposition pursuant to MCR 2.116©(8), we are required to accept the factual allegations in the pleadings, including in the complaint, as true. Wyoming Chiropractic Health Clinic, PC v. Auto-Owners Ins. Co., 308 Mich.App. 389, 391, 864 N.W.2d 598 (2014). Accordingly, quoting the pleadings is appropriate.
2 According to Sarkar”s complaint, “Pubpeer.com is a web site that describes itself as an online community that uses the publication of scientific results as an opening for fruitful discussion among scientists.” “ Pubpeer.com appears to have been created by anonymous scientists, and scientists are permitted to comment on pubpeer.com anonymously as well.
3 The contents of the flyer are discussed later in this opinion.
4 PubPeer also argued that Michigan courts should require that plaintiffs in defamation cases put forth evidence establishing a prima facie case of defamation before unmasking the identities of anonymous commenters as other jurisdictions have done. See, e.g., Dendrite Int”l, Inc. v. Doe, No. 3, 342 N.J.Super. 134, 141-142, 775 A.2d 756 (N.J.Super.Ct.2001) ; see also Doe No. 1 v. Cahill, 884 A.2d 451, 460-461 (Del.2005). PubPeer, John Doe (an anonymous defendant who filed an appearance and is a party to this appeal), and amici curiae (Google Inc., Twitter, Inc., Public Citizen, Inc., Dr. Bruce M. Alberts, and Dr. Harold E. Varmus) raise this same argument on appeal. However, as explained later in this opinion and acknowledged by those parties, this Court has declined to do so in the past, and we are bound by that decision. MCR 7.215(J)(1).
5 An order reflecting the trial court”s decision was entered on March 9, 2015, and it is that order Sarkar challenges on appeal in Docket No. 326667. This Court granted Sarkar”s application for leave to appeal in Docket No. 326667 on August 27, 2015. Sarkar v. Doe, unpublished order of the Court of Appeals, entered August 27, 2015 (Docket No. 326667).
6 An order reflecting the trial court”s decision was entered on March 26, 2015, and it is that order PubPeer challenges on appeal in Docket No. 326691. This Court granted PubPeer”s application for leave to appeal in Docket No. 326691 on August 27, 2015. Sarkar v. Doe, unpublished order of the Court of Appeals, entered August 27, 2015 (Docket No. 326691). The Court of Appeals ordered the appeals consolidated.
7 Additionally, and perhaps more importantly, Cooley is distinguishable from this matter in that Cooley, 300 Mich.App. at 252, 833 N.W.2d 331, involved a motion to quash or for a protective order filed by the anonymous speaker at issue, not a nonparty. See id. (“On August 5, 2011, Doe 1 filed a motion in the Ingham Circuit Court, requesting that it quash any outstanding subpoenas to Weebly or, alternatively, issue a protective order limiting or restricting Cooley”s use or disclosure of his identifying information.“). Conversely, this case involves a motion to quash by a nonparty relating, at least in part, to statements made by anonymous speakers who have not appeared. Therefore, while Cooley is still helpful to our analysis in this case, the circumstances presented in that case are not identical to those here as argued by Sarkar.
8 Because “[t]he United States and Michigan Constitutions provide the same protections of the freedom of speech,” and Michigan”s Constitution is not interpreted more broadly than that of the Federal Constitution on that issue, “this Court may consider federal authority when interpreting the extent of Michigan”s protections of free speech.” Cooley, 300 Mich.App. at 256, 833 N.W.2d 331.
9 In Cooley, 300 Mich.App. at 266-267, 833 N.W.2d 331, a panel of this Court expressly refused to adopt Dendrite, reasoning that any expansion beyond the Michigan rules of civil procedure would be better accomplished by the Legislature.
10 As indicated earlier in this opinion, Sarkar argues on appeal that the appearance of one anonymous speaker, in and of itself, renders Ghanam wholly inapplicable. We cannot agree. The practical implications of such an understanding are unacceptable. In essence, that understanding would require that the appearing anonymous speaker represent the interests of all anonymous speakers, and that is simply unacceptable in cases, such as this one, in which the anonymous speakers made different statements. There is simply no legal authority that would support a conclusion that the appearance of one anonymous speaker somehow affects the anonymity protections afforded to other anonymous, but nonappearing, speakers simply because they happened to comment on the same website. Furthermore, Sarkar”s position overlooks the fact that Ghanam expressly held that a motion for summary disposition, whether made by an anonymous speaker or a nonparty, is not required: “This evaluation [of the plaintiff”s claims under MCR 2.116©(8) ] is to be performed even if there is no pending motion for summary disposition before the court. “ Ghanam, 303 Mich.App. at 541, 845 N.W.2d 128 (emphasis added). Accordingly, the trial court was required to perform this MCR 2.116©(8) evaluation regardless of whether PubPeer, an anonymous speaker, or any other individual or entity moved for summary disposition.
11 The record reflects that a copy of Sarkar”s complaint was posted to pubpeer.com. It also appears that this lawsuit, as well as the underlying allegation, has generated significant publicity in the cancer-research community. In sum, while neither party expressly agrees or disagrees that the reasonable-notice requirement was satisfied, it appears insignificant and is largely irrelevant in light of our conclusion with respect to the second requirement.
12 With respect to the third element, we note that Sarkar appears to be a limited-purpose public figure. Therefore, he is required to prove that the anonymous speakers acted with actual malice in making the statements at issue. VandenToorn v. Bonner, 129 Mich.App. 198, 207, 342 N.W.2d 297 (1983). Nevertheless, because none of the comments at issue is capable of defamatory meaning, we need not address whether the record reflects any indication of actual malice.
13 At the outset, it must be noted that, as a matter of law, facially deficient claims cannot survive a motion for summary disposition under MCR 2.116©(8). Ghanam, 303 Mich.App. at 543, 845 N.W.2d 128. Accordingly, because “ [a] plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory,” “ our review of whether statements are capable of defamatory meaning so as to survive a motion for summary disposition is limited to those statements that are specifically identified in the complaint. Id. at 543, 845 N.W.2d 128, quoting Cooley, 300 Mich.App. at 262, 833 N.W.2d 331 (alteration in original). We have therefore elected to quote, in full, each paragraph at issue in Sarkar”s complaint. We would also note, however, that while we have attempted to copy the formatting used by Sarkar in his complaint as closely as possible, some spacing differs minimally.
14 See also Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 197 Mich.App. 48, 57, 495 N.W.2d 392 (1992) (“Plaintiffs must plead precisely the statements about which they complain.”); Gonyea v. Motor Parts Fed. Credit Union, 192 Mich.App. 74, 77, 480 N.W.2d 297 (1991) ( “These elements must be specifically pleaded, including the allegations with respect to the defamatory words, the connection between the plaintiff and the defamatory words, and the publication of the alleged defamatory words.”); Cooley, 300 Mich.App. at 266, 833 N.W.2d 331 (”[U]nder Michigan law, the plaintiff must allege the exact defamatory statements.“).
15 To be clear, we are holding that Michigan law requires a plaintiff to specifically identify every statement that he or she claims is capable of defamatory meaning. In this case, Sarkar quotes certain words, some phrases, and provides citations to various webpages. This is insufficient. Indeed, the majority of the webpages that Sarkar cites have changed and no longer include the words or phrases that he quotes. For example, the webpage cited in Paragraph 41 of the complaint includes approximately 63 comments, the majority of which were made after he filed the complaint in this case. The comments were made between November 2013 and October 2016, beginning with invitations to “please compare” certain figures that appear similar and ending with a link to an article on retractionwatch.com that summarizes a Wayne State University investigation that found Sarkar had engaged in misconduct.
16 Nevertheless, we do recognize that ordinarily a plaintiff may be given an opportunity to amend a facially deficient complaint. See MCR 2.116(I)(5). However, for the reasons discussed later in this opinion, allowing Sarkar to amend his complaint would be futile, and it is therefore unnecessary.
17 We should note that we are assuming, for purposes of Paragraphs 40(a), (b), and (d), 43, 48, and 49, that Sarkar”s complaint sufficiently identified the allegedly actionable statements. While we still believe that some of these paragraphs or subparagraphs are inadequate, we feel that we are able to provide meaningful review and choose to do so. Nevertheless, providing a citation to a webpage and quoting words or incomplete phrases is not sufficient.
18 While not binding, we are permitted to consider caselaw from other jurisdictions as persuasive. Travelers Prop. Cas. Co. of America v. Peaker Servs., Inc., 306 Mich.App. 178, 188, 855 N.W.2d 523 (2014). We find the Ninth Circuit”s reasoning in Partington persuasive and quote it at length below:
Reading each of the statements in context, we find that the statements themselves, as well as the implications that Partington attributes to them, do not represent assertions of objective fact. When one reads the first passage in context, it is clear that Bugliosi does not claim to know the reason for the defense lawyers” failure to bring out the existence of the contradiction; rather, he speculates on the basis of the limited facts available to him. The passage clearly represent [sic] Bugliosi”s personal interpretation of the available information and not a verifiable factual assessment of Partington”s conduct. As the Seventh Circuit has noted:
A statement of fact is not shielded from an action for defamation by being prefaced with the words “in my opinion,” but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.
With regard to the second statement, Bugliosi merely outlines a set of facts, allowing the reader to draw his own conclusion about them. Even if we were to attribute to Bugliosi”s statement the implication that Partington contends arises from itthat Partington represented his client poorlyBugliosi can only be said to have expressed his own opinion after having outlined all of the facts that serve as the basis for his conclusion.
The courts of appeals that have considered defamation claims after Milkovich have consistently held that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment. As the Fourth Circuit noted, “[b]ecause the bases for the conclusion are fully disclosed, no reasonable reader would consider the term anything but the opinion of the author drawn from the circumstances related.” Similarly, the District of Columbia Circuit has noted that “ [b]ecause readers understand that such supported opinions represent the writer”s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based on those facts, this type of statement is not actionable in defamation.” “ Finally, the First Circuit has held that, as long as the author presents the factual basis for his statement, it can only be read as his “personal conclusion about the information presented, not as a statement of fact. ” Thus, we join with the other courts of appeals in concluding that when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment. [Partington, 56 F.3d at 1156-1157 (citations omitted; alterations in original).]
19 Sarkar also argues that by quoting the e-mail in a public post on pubpeer.com, the commenter violated various federal laws involving the confidentiality of research-misconduct investigations. However, he fails to fully develop this argument and he also fails to provide sufficient legal support for his claim to allow for meaningful review. Accordingly, we deem the argument abandoned. Peterson Novelties, Inc. v. City of Berkley, 259 Mich.App. 1, 14, 672 N.W.2d 351 (2003). In any event, we do not believe that the public disclosure of this e-mailwhich specifically refused to confirm that Wayne State University was conducting a scientific-misconduct investigation of Sarkar”s researchconstitutes a violation of any federal laws that require confidentiality in research-misconduct investigations. See, e.g., 42 C.F.R. 93.108 (2005).
20 See also Orr v. Argus-Press Co., 586 F.2d 1108, 1114-1115 (C.A.6, 1978) (differentiating between a statement that “the plaintiff sits around in his back yard with a drink in his hand and therefore must be an alcoholic,” which is not actionable, and a statement that “the plaintiff is an alcoholic,” which is actionable) (citation and quotation marks omitted).
21 Sarkar argues, in pertinent part, as follows:
The court”s error in considering the ©(8) factors was compounded when it considered the affidavit of Dr. Krueger (opining about Dr. Sarkar”s research) attached to PubPeer”s motion. Even assuming arguendo that the court were permitted to consider ©(8) factors on the motion to quash, MCR 2.116 does not permit reference to affidavits in determining a©(8) motion by its plain language: “Only the pleadings may be considered when the motion is based on subrule ©(8) or (9).”
As argued above, because there was an appearing defendant, PubPeer was not permitted under Cooley to argue the standards of MCR 2.116©(8). The error was exacerbated by PubPeer”s submission of two affidavits in support of their motion. They may not submit them, and this court may not consider them. Specifically, their expert”s affidavit must be completely disregarded, and it is not harmless, because its focus was that the anonymous commenters” statements were substantially true and not defamatoryan argument the lower court considered.
As is obvious from this quotation, Sarkar identifies nothing in the record to support his claim that the trial court considered these affidavits. In essence, Sarkar asks this Court to assume that, because they are included in the record, the trial court impermissibly relied on them, and that is certainly not an assumption we are willing to make.
22 Sarkar argues, in pertinent part, as follows:
Furthermore, clear precedent requires that all factual allegations and the inferences to be drawn from there are to be taken in the light most favorable to the non-moving party and taken as true. However, the court”s remarks at oral argument repeatedly assumed an interpretation of the pleadings favorable to the defendant. That is improper when considering the pleadings alone.
As argued in the first section, because there was an appearing defendant, PubPeer was not permitted under Cooley to even argue the standards of MCR 2.116©(8). The error was compounded by the court”s interpretation of all of Dr. Sarkar”s factual allegations, and the inferences therefrom, in a light favorable to PubPeer.Again, Dr. Sarkar fails to identify anything in the record to support his claim that the trial court made factual inferences against him other than to generally point to the tone of the trial court”s “remarks.” In essence, Sarkar is asking us to search the record for him in hopes of finding something to support this assertion, and it is not our duty to do so.23 Specifically, Sarkar argues, in entirety, as follows:PubPeer argued, and the court agreed, that plaintiff was required to produce evidence at this stage, to wit: the document that suggested Dr. Sarkar was under U.S. Senate inquiry. The transcript will indicate that after the court directed plaintiff produce this document, a copy was handed over on the record to the attorneys for PubPeer. For the same reasons set forth above, that any analysis under MCR 2.116©(8) must be based on the pleadings alone, this was plain error.24 Stated differently, when the alleged tortious conduct “is a defendant”s utterance of negative statements concerning a plaintiff, privileged speech [protected by the First Amendment] is a defense.” Lakeshore Community Hosp., Inc. v. Perry, 212 Mich.App. 396, 401, 538 N.W.2d 24 (1995).25 It should be noted, however, that Sarkar”s complaint does not identify completely separate conduct as he claims. Rather, his complaint expressly identifies the comments on pubpeer.com as the basis or at least as part of the basis for more than just his defamation claim. For example, while Sarkar claims that the additional causes of action cite completely separate conduct, his intentional infliction of emotional distress claim expressly relies on “false statements made on PubPeer[.]” Thus, we feel it necessary to clearly state that, to the extent his other causes of action rely in any way upon the statements made on pubpeer.com, those causes of action may not proceed on remand because they are premised on constitutionally protected speech.26 Relatedly, we completely reject the idea that only the defamation claim is subject to First Amendment limitations. Using that logic, if Sarkar simply dismissed his defamation claim and continued with the other four claims with respect to the statements on pubpeer.com, there would be no First Amendment protection, and that is directly contrary to the United States and Michigan Constitutions as well as caselaw from Michigan, other states, and the federal courts, including the United States Supreme Court.