Critical anonymity

November 07, 2005

In the narrowest sense, the issue in a case heard by Maryland's Court of Special Appeals last week involves whether the publisher and editor of a financial newsletter in Rockville has to comply with the demands of an Arizona-based company to reveal his sources and his subscribers. On that issue, the appeals court may very well agree with a lower court that the publisher must respond.

But the case raises broader First Amendment and other issues, including the right of people who post negative comments on the Internet to remain anonymous and efforts by companies that are the subjects of such comments to unmask their critics. Those issues are far from settled.

Two years ago, publisher Timothy M. Mulligan wrote an unfavorable report about Matrixx Initiatives Inc., the Arizona-based maker of Zicam, an over-the-counter nasal decongestant. By the time of Mr. Mulligan's printed newsletter report, Matrixx had already sued about two dozen anonymous individuals who had posted statements on the Internet questioning Zicam's effectiveness and reporting that some users had lost their sense of smell.

Matrixx subpoenaed Mr. Mulligan, seeking his sources and his subscribers and claiming that statements in his report were similar to negative statements made online. Mr. Mulligan complied with one subpoena, but balked when served with a second one. Is he protected from divulging information under Maryland's press shield law or the First Amendment? A trial court judge in Montgomery County said no, and Mr. Mulligan took his case to the state's second-highest court.

That court may also decide that this is merely a private discovery dispute, as Matrixx argues, and that Mr. Mulligan is not protected by any statutory or constitutional privilege that would prevent him from cooperating. But beyond Mr. Mulligan, there are broader issues involving Matrixx's right to know and the right of its Internet critics to remain anonymous.

Those critics may or may not be the same as Mr. Mulligan's readers, but the courts appear to be aiding what might be a fishing expedition. The exercise is especially suspicious because whatever negative things are being said about Matrixx and Zicam on the Web, it's unclear whether anything Mr. Mulligan wrote or his readers said online had any effect on either sales or the stock price. Can the company make a compelling showing of harm?

Other state courts, particularly in New Jersey and Delaware, have tried to establish reasonable balance tests to determine when a company's right to know its online critics trumps the critics' First Amendment right to remain anonymous. We can only hope that Maryland's courts eventually strike a similar balance.

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