Sarkar v. Doe - PubPeer Subpoena Challenge
What's at Stake
The ACLU filed a motion in Michigan state court challenging the constitutionality of a subpoena issued to the website PubPeer demanding that it turn over the identities of anonymous commenters. In March 2015, the trial judge ruled that PubPeer had to unmask one – but only one – of the commenters. Both PubPeer and the researcher appealed, and the ruling was upheld in December 2016.
Summary
PubPeer hosts anonymous discussion of scientific journal articles. A cancer scientist has sued several of those anonymous commenters for defamation and issued a subpoena to PubPeer demanding their identities. The ACLU – along with its Michigan affiliate and Jollymore Law Office, P.C. – challenged the subpoena, arguing that the First Amendment protects the anonymity of PubPeer’s commenters unless the plaintiff can make a preliminary showing of merit to his claims. In the motion to quash the subpoena, filed in December 2014, the ACLU argued that the plaintiff could not make that showing. In March 2015, a Michigan judge ruled that PubPeer is not required to unmask the commenters, save for one. Both parties requested a review by the Michigan Court of Appeals, which upheld the ruling in December 2016.
The appeals court rightly concluded that expressing an opinion on the basis of disclosed facts cannot be defamatory as a matter of law, and that anonymous speakers therefore cannot be unmasked simply for making such statements. Based on the ruling, PubPeer does not have to expose anything about any user to the researcher.
PubPeer’s website is just the most recent example of the value of anonymity. It was launched in 2012 by a group of scientists who felt that the merits of scientific research should be discussed openly, without fear of recrimination from other members of the scientific community. It has accomplished that mission principally by allowing the scientists who post on its site to do so anonymously. This provides them the freedom necessary to contribute candid comment and debate on research methods, developments, results, and new directions without fear that they might alienate colleagues, compromise their own careers, or poison their professional relationships. Shielded by that anonymity, PubPeer’s commenters have in turn produced a steady stream of discussion and debate of the work of their peers, at times resulting in the modification or retraction of high-profile research.
The subpoena to PubPeer jeopardizes the anonymity essential to PubPeer’s mission and, importantly, protected by the First Amendment. The constitutional right to anonymity is not absolute, but it protects anonymous speakers from being unmasked unless those suing them can make out a preliminary showing of merit to their legal claims. That protection is essential to ensuring that the right to anonymity continues to serve – as the Supreme Court has long observed – as "a shield from the tyranny of the majority."
Legal Documents
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12/07/2016
Opinion ruling in PubPeer's favor -
11/29/2016
Order Denying PubPeer’s Motion to Supplement the Record -
11/16/2016
PubPeer's Motion to Supplement the Record -
10/31/2016
PubPeer's Withdrawal of Motion for Leave to File Reply as Moot -
10/28/2016
Order Granting PubPeer's Motion for Leave to File Supplemental Brief -
10/28/2016
PubPeer's Motion for Leave to File a Reply -
10/26/2016
Dr. Sarkar's Opposition to PubPeer's Motion for Leave -
10/20/2016
PubPeer's Motion to File Supplemental Brief -
01/19/2016
Amicus Briefs in Support of PubPeer -
- Google and Twitter
- Scientists (Dr. Alberts and Dr. Varmus)
- Public Citizen
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsGoogle and TwitterDate Filed: 01/19/2016
Court: Court of Appeals (MI)
Download DocumentSarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsScientists (Dr. Alberts and Dr. Varmus)Date Filed: 01/19/2016
Court: Court of Appeals (MI)
Download DocumentSarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsPublic CitizenDate Filed: 01/19/2016
Court: Court of Appeals (MI)
Download Document -
01/19/2016
PubPeer’s Reply Brief -
12/28/2015
PubPeer’s Appellee Brief -
12/27/2015
Plaintiff’s Appellee Brief -
10/22/2015
Plaintiff’s Appeal Brief -
10/22/2015
PubPeer’s Appeal Brief -
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10/22/2015
PubPeer’s Excerpts of Record
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsPubPeer’s Excerpts of RecordDate Filed: 10/22/2015
Court: Court of Appeals (MI)
Download Document -
10/22/2015
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05/12/2015
PubPeer's Reply Brief on App. for Leave to Appeal -
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05/13/2015
Exhibits
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsExhibitsDate Filed: 05/13/2015
Court: Court of Appeals (MI)
Download Document -
05/13/2015
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04/21/2015
Plaintiff's Answer to PubPeer's App. for Leave to Appeal -
04/17/2015
PubPeer's Answer to Plaintiff's App. for Leave to Appeal -
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04/17/2015
Index of Exhibits
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsIndex of ExhibitsDate Filed: 04/17/2015
Court: Court of Appeals (MI)
Download Document -
04/17/2015
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03/31/2015
Pubpeer's App. for Interlocutory Leave to Appeal -
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03/31/2015
Index of Exhibits
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsIndex of ExhibitsDate Filed: 03/31/2015
Court: Court of Appeals (MI)
Download Document -
03/31/2015
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03/30/2015
Plaintiff's App. for Interlocutory Leave to Appeal
Date Filed: 12/07/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 11/29/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 11/16/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/31/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/28/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/28/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/26/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/20/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 01/19/2016
Court: Court of Appeals (MI)
Download DocumentDate Filed: 12/28/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 12/27/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/22/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 10/22/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 05/12/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 04/21/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 04/17/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 03/31/2015
Court: Court of Appeals (MI)
Download DocumentDate Filed: 03/30/2015
Court: Court of Appeals (MI)
Download Document-
04/20/2015
Order Granting PubPeer's Motion for Stay -
04/10/2015
Plaintiff's Supplemental Brief re: Motion for Reconsideration -
03/26/2015
Order Partially Denying Quash -
03/23/2015
Order Adjourning Hearing of 3/24/2015 -
03/20/2015
PubPeer's Emergency Motion for Stay Pending Appeal -
03/19/2015
Transcript of March 19, 2015 Hearing on Motion to Quash -
03/17/2015
Plaintiff's Response to PubPeer's Supplemental Brief -
03/13/2015
PubPeer's Supplemental Brief -
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03/13/2015
Exhibit A - Flyer Allegedly Distributed at Wayne State -
03/13/2015
Exhibit B - Saad v. Am Diabetes Ass'n (D. Mass. March 5, 2015)
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsExhibit A - Flyer Allegedly Distributed at Wayne StateDate Filed: 03/13/2015
Court: Wayne County Circuit Court (MI)
Download DocumentSarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsExhibit B - Saad v. Am Diabetes Ass'n (D. Mass. March 5, 2015)Date Filed: 03/13/2015
Court: Wayne County Circuit Court (MI)
Download Document -
03/13/2015
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03/11/2015
Plaintiff's Supplemental Brief re: Paragraph 40(c) of the Complaint -
03/09/2015
Order Partially Granting Motion to Quash -
03/03/2015
PubPeer's Reply Brief -
02/27/2015
Plaintiff's Response to PubPeer's Motion to Quash -
12/10/2014
PubPeer's Motion to Quash -
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12/10/2014
Krueger Affidavit -
12/10/2014
Jollymore Affidavit
Sarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsKrueger AffidavitDate Filed: 12/10/2014
Court: Wayne County Circuit Court (MI)
Download DocumentSarkar v. Doe - PubPeer Subpoena ChallengeLegal DocumentsJollymore AffidavitDate Filed: 12/10/2014
Court: Wayne County Circuit Court (MI)
Download Document -
12/10/2014
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10/13/2014
Subpoena to PubPeer -
10/09/2014
Complaint
Date Filed: 04/20/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 04/10/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/26/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/23/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/20/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/19/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/17/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/13/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/11/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/09/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 03/03/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 02/27/2015
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 12/10/2014
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 10/13/2014
Court: Wayne County Circuit Court (MI)
Download DocumentDate Filed: 10/09/2014
Court: Wayne County Circuit Court (MI)
Download Document