Court Hears Internet Anonymity Case

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Court Hears Internet Anonymity Case
Nov 02 3:19 PM US/Eastern
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By ALEX DOMINGUEZ
Associated Press Writer


ANNAPOLIS, Md.


The publisher of a financial newsletter told Maryland's second highest
court Wednesday that he should not be forced to disclose his subscriber
list and other information sought by an Arizona company seeking those it
says made defamatory online comments.

The publisher, Timothy M. Mulligan, told the judges "almost everything
we publish could potentially be subpoenaed," putting him in the position
of constantly appearing for depositions if his request to quash a
subpoena by the Arizona drug company, Matrixx Initiatives, is denied.

The judges, however, appeared to side with Matrixx, repeatedly asking
why Mulligan should not appear for the deposition and invoke his right
not to reveal his subscribers and sources under Maryland's so-called
"Shield Law," which protects the rights of the press.

"My sense is it didn't go well," Mulligan said after the hearing.

"It's not clear yet, but it will probably be in litigation for years
because I have no intention of giving up my sources or subscribers."

After the hearing, Matrixx attorney David Tobin said "no one has the
right to make defamatory comments. That is not protected speech."

Internet postings have become the subject of a number of court battles,
especially in cases where they have affected the stock prices of
companies. Free speech advocates have also become involved and the issue
has even entered the political arena in Maryland.

Joseph F. Steffen Jr., a former aide to Republican Gov. Robert L.
Ehrlich Jr., resigned last winter after it was revealed that he had
posted rumors about Baltimore Mayor Martin O'Malley's personal life on
Internet chat sites. O'Malley is seeking the Democratic nomination for
governor and would face Ehrlich in the general election if he wins.

Tobin told the court it was unclear whether Mulligan could invoke the
shield law.

"That's the white elephant in the room," the Matrixx attorney told the
judges.

Mulligan said appearing constantly for depositions could hamper his
ability to make a living, especially since his newsletter reports on
questionable accounting practices by companies. The judges later asked
Tobin how many depositions Mulligan would have to sit through.

"Hopefully, one," Tobin responded.

In response to the first subpoena by Matrixx, Mulligan two years ago
turned over nearly 400 pages of documents, which he said was mainly
source material for his report. He has refused to comply with a second
subpoena seeking, among other things, his subscriber list and any
contacts with an anonymous poster to Internet messages boards known as
"TheTruthseeker."

However, Montgomery County Circuit Judge Eric M. Johnson denied
Mulligan's request to quash the second subpoena and Mulligan appealed to
the Court of Special Appeals.

Matrixx claims the postings are part of a scheme to drive down the
company's stock, benefiting traders who sell short, or borrow shares and
repay them at a later time, hopefully when the price has dropped.

The company filed a defamation lawsuit in Arizona in 2002, naming two
dozen John and Jane Does as defendants. Matrixx has also been battling
lawsuits claiming its Zicam Cold Remedy nasal gel causes permanent loss
of smell and taste.

Mulligan has said he doesn't know the anonymous posters and doesn't
think he should answer further questions. He is fighting the subpoena
with the help of the American Civil Liberties Union, the Electronic
Privacy Information Center, Public Citizen and other advocacy groups

Tobin, however, said the issue was merely one of discovery, the legal
method of obtaining the facts in a dispute and not a precedent-setting
First Amendment case.

The company "simply wants to know what Mr. Mulligan might know" about
the online postings, Tobin said.

http://www.breitbart.com/news/2005/11/02/D8DKHUSG3.html