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Maryland Anonymity Case



A case now pending before the Maryland Special Court of Appeals may make new law in that state on the ability of a party to use civil discovery in a "John Doe" suit to identify anonymous posters who are alleged to have published defamatory statements.

In Forensic Advisors, Inc. v. Matrixx Initiatives, Inc. (No. 02621; September 2004 Special Term), plaintiff Matrixx has filed a number of John Doe suits against anonymous persons who have published statements critical of Matrixx, its management and its over-the-counter nasal decongestant.

Matrixx then served subpoenas on a number of Web publishers, including Timothy Mulligan, the publisher of the Eyeshade Report. Mulligan had republished a number of statements critical of Matrixx that he attributed to anonymous sources and Matrixx sought discovery of those sources, together with documents generated by Mulligan in reporting the critical stories.

Mulligan sought to quash the subpoena but lost before the trial court, appealing to the Maryland Special Court of Appeals.

Public Citizen, the American Civil Liberties Union of Maryland, and a number of consumer watchdog groups filed an amici brief, arguing that disclosure is prohibited by the Maryland reporters shield statute and also on the basis of the First Amendment.

In their brief, Amici argued:

"Anonymity has a long and celebrated history in the United States, beginning with the pseudonymous advocates of the United States Constitution . . . People choose to maintain anonymity regarding what they read for many reasons, including forestalling assumptions about their beliefs and associations, maintaining privacy, and avoiding harassment, threats, frivolous litigation, or social stigma."

While the issue of the Maryland shield law will be unique to the State of Maryland, the First Amendment line of thinking is interesting. Notably, Amici are arguing that there is a First Amendment right to anonymous reading -- not anonymous speaking. (While the right of anonymous speech is clearly implicated in the subpoena, Amici do not identify this as one of the two main issues in the case.)

While there is a natural tendency to root for the First Amendment in struggles like these, the interests of the corporation are also important, though perhaps less sentimental.

A corporation that finds itself a target of anonymous attacks has few weapons at its disposal. If its attackers are former employees (who may be subject to contractual obligations of confidentiality) the corporation cannot respond appropriately without identifying the anonymous speakers. Under the present law, a John Doe lawsuit is one of the few methods for the corporation to identify its attackers.

Consumer groups couch the argument in terms of the individual's right to speak and the public's "right to know", but when the speech is anonymous, the reader can have no assurances of its truthfulness. Likewise, the target of the hostile speech is unable to correct the public record: it cannot refute the speaker's sources, reasoning or qualifications.

While there have been examples of corporate executives who have arguably abused the litigation process by attacking all online critics, there is also a zone in which corporate defendants must have recourse to defend themselves.

If the goal of the First Amendment is a vigorous public debate that brings to light all pertinent viewpoints and relevant data, that goal would seem to be furthered by a civil process that permits the target of critical speech to identify its attackers.

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.