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State high court protects subscriber lists from subpoena

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NEWS MEDIA UPDATE   ·   MARYLAND   ·   Confidentiality/Privilege   ·   Sep. 14, 2005

NEWS MEDIA UPDATE   ·   MARYLAND   ·   Confidentiality/Privilege   ·   Sep. 14, 2005

State high court protects subscriber lists from subpoena

  • Maryland’s highest court affirmed a lower court decision Monday preventing the state securities commissioner from subpoenaing publisher’s subscriber and purchaser lists.

Sep. 14, 2005  ·   The First Amendment protects publisher subscriber and purchaser lists from subpoena, the Court of Appeals of Maryland ruled Monday, protecting Agora, Inc., an investment newsletter publisher, from an investigation by the state securities commissioner.

“Enforcement of the subpoenas would intrude upon the First Amendment rights of Agora’s subscribers and customers,” Justice Irma S. Raker wrote for the unanimous court.

The expansive ruling could have broad application for publishers because it recognizes the First Amendment rights of readers on the subscriber lists.

“It’s a great decision,” said Agora’s attorney Bruce D. Brown of Baker & Hostetler. “It’s one of the first of its kind from a high court in any state that specifically looks at protection for a publisher’s customer list and established a heightened standard of review.”

By focusing on the rights of the readers, the decision gives publishers’ subscriber lists broad protection from government investigation.

“The First Amendment protects broadly the rights of individuals to read and receive ideas,” Raker wrote. “First Amendment freedoms are implicated and infringed directly when the government denies access to or proscribes reading materials on the basis of the contents of those materials.”

The court’s decision could reach further than just customer lists, according to Brown.

“It’s useful in an era where publishers are increasingly maintaining sophisticated information about their readers,” Brown said. “These databases could be a target, and a decision like this could be very useful for the next step.”

Maryland Securities Commissioner Melanie Lubin issued the subpoenas in 2002 and 2003 in an investigation into possible violations of Maryland securities law. Agora complied with all other parts of the subpoena but refused to turn over the names of its subscribers and customers. After the Circuit Court in Baltimore denied her request, she took the case to the Court of Appeals, arguing that the subpoenas asked for relevant information regarding her inquiry and did not implicate any First Amendment interests because the subpoenas did not infringe on Agora’s publishing. The court found that her subpoenas amounted to little more than a “fishing expedition.”

“Although having access to lists of Agora’s subscribers and customers might be helpful to the Commissioner in the context of this investigation, the Commissioner has not shown a compelling need for the subscriber information,” Raker wrote.

The decision is welcome for lawyers and reporters trying to protect First Amendment rights.

“There’s precious little precedent anywhere for a case like this,” Brown said. “To have the first decision of its kind to unanimous and so expansively written is wonderful, especially since the field has seen so much recent erosion of First Amendment freedoms.”

(Lubin v. Agora, Inc.; Media Counsel: Bruce D. Brown, Baker & Hostetler LLP, Washington, D.C.)CM

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