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Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, September 16, 2005

Maryland Court of Appeals Rules That Newsletter Publisher May Not Be Compelled to Produce Subscriber List

In Lubin v. Agora, the Maryland Court of Appeals has upheld a lower court ruling that the Maryland Securities Commissioner's request for production of a company's subscriber lists was overbroad and violated the First Amendment.

The Commissioner "commenced an investigation of Agora based on two activities undertaken by Agora", the company in question. "First, Agora sent a May, 2002 mass email ("the Email") to an indeterminate number of its own subscribers, and to other individuals drawn from commercially-available marketing lists. The Email offered a four-page report ("the Report") on an unnamed company, in which investors were promised they would "make a fortune". According to the Email, one of Agora's ...columnists had received "insider information" that a nuclear arms reduction treaty between the United States and Russia would be signed...and would create enormous profits for the unnamed company....The Email advised that investors could "double or even triple" their money by purchasing stock.....The name of this company would be revealed only to those who purchased the report, which was priced at $1,000. How many copies of the report were transacted is unclear, but at least one person filed a complaint with the Division after he purchased the report, followed its advice to invest...and lost money....The second activity that interests the Division is Agora's operation of the Oxford Club. In particular, the Division was concerned about a venture known as the "Oxford Club--Chairman's Circle," which, according to a direct-mail advertisement, feature "[l]ifetime access" to annual "private teleconference[s] covering the issues most critical to our small group...the world's most knowledgeable experts to walk us through important strategies...a Chairman's Circle private researcher...to help you find specific information concerning a specific stock, offshore investments, global banking....' The price to join the Chairman's Circle was $5,000, and additional sums were due annually. The Commissioner is investigating whether these activities violate Maryland securities law. First she alleges that the Email or Report could violate the antifraud provisions codified at [sections] 11-301 and 11-302 of the Securities Act. Second, the Commissioner alleges that the activities of the Oxford Club (and possibly the Email and Report) could constitute individualized investment advice and thus subject Agora to the registration requirement of [section] 11-401. (Agora is not registered in Maryland as a broker-dealer.) In furtherance of her investigation, the Commissioner issued two subpoenas duces tecum pursuant to her power under ยง 11-701(b). "

After examining the extent of the materials requested under the subpoenas, the Circuit Court for Baltimore County denied enforcement, holding in part "I do not believe that in our Bill or Rights that there is any provision that has higher priority than the First Amendment, and I think courts must be very zealous in guarding that most fundamental of all rights and not allow any erosion thereof. And I do believe that what the Commissioner is attempting to do here is, in its own relatively small way, an attempt to erode the fundamental principle. I do not believe that the Commissioner has made out any compelling showing why Agora, Inc., must release its subscriber list. In counsel's operning argument, she said it would be very helpful, and perhaps it would be. And even assuming it would be, that doesn't win the ball game. That's not what the Commissioner has to show. Counsel has argued it would be very useful to use. More than once, she said it would be very useful to us to show what the actions of Agors may have been. Counsel has argued that by seeing thse subscriber lists it may implicate Agora by talking to the subscribers, a fishing expedition is what this is called. You know, we'd like to talk to subscribers and maybe we'll find something to implicate Agora. Maybe so. Maybe you would, but that is no basis for this. There is no attempt to zero in on certain subscribers or a certain class of subscribers... Not that narrowing a list...would be permissible either, but at least we're not at that point....Counsel has argued, well, it's relevant...Well, a million things can be relevant...."

The Commissioner appealed on the grounds that "the Circuit Court erred in its determination that First Amendment interests are implicated...and, therefore, failed to apply the proper test for enforcement of administrative subpoenas....The Commissioner asserts that the information sought is relevant to the investigation, which is authorized by statute....The Commissioner further contents that no legitimate First Amendment interest would be implicated...because the subpoenas do not restrict Agora's publishing activities in any way. The Commissioner claims that the subpoenas are enforceable because they were issued in connection with the Email, which she maintains is unprotected commercial speech because it is misleading and serves Agora's economic interests. Further, the Commissioner argues that the subpoenas do not implicate associational rights of Agora's subscribers because the Commissioner seeks subscriber identities only as a means of fulfilling her statutory duty to protect investors and not in an effort to learn more about their associational ties or political persuasions.

"Agora argues that the First Amendment...Article 40 of the Maryland Declaration of Rights, and Maryland public policy promoting the free flow of information require a heightened level of review when an adminstrative subpoena seeks the disclosure of a publisher's subscriber lists....Agora argues [,] the Commissioner must show the relevancy of the information sought, a compelling need for the information, and proof that the State has no other available means of obtaining it. Claiming that it has standing to assert the constitutional rights of its subscribers, Agora also argues that the First Amendment ...rights of its readers trigger "exacting" scrutiny.... Agora maintains that the Commissioner has failed to show a compelling need for subscriber lists.... Second, Agora maintains that there is no compelling or even relevant need for subscriber lists to investigate whether Agora violated antifraud provisions...Agora asserts that the text of its publications, along with its trading records, which it has produced, would suffice in determing in whether it made any false or misleading statements...."

After examining the arguments and considering various Supreme Court precedents, the Maryland court considered this case as one partly of the "right to read anonymously" and thus as one of the right to read unhindered by fear of "[c]ompelled disclosure of an individual's decision to read, purchase, or subscribe to certain publications..". Thus, "[t]o the extent that the Commission's subpoenas require Agora, a publisher, to disclose the identities of those who subscribe to or purchase its materials, the subpoenas seek information within the protective umbrella of the First Amendment. Enforcement of the subpoenas would intrude upon the First Amendment rights of [those] subscribers and customers because disclosure of their subscriber status and purchase of the Report would destroy the anonymity that the Supreme Court has recongized as important to the unfettered exercise of First Amendment freedoms. If the names...were disclosed...they might be subjected to questioning from investigators about their reading habits. Agora's subscribers may be discouraged from reading its materials if they are interviewed...even if the readers are told that, individually, they are not under investigation. We do not accept the Commissioner's contention that Agora's subscribers enjoy a lower level of First Amendment protection because the Email or Report may have been "commercial speech," possibly even false commercial speech.

...

"In order to compel production of the subscriber information, the COmmssioner must therefore establish a substantial relation between the information sought and an overriding and compelling State interest."

Read the entire ruling here.

http://lawprofessors.typepad.com/media_law_prof_blog/2005/09/maryland_court_.html

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