Anonymous user on the NOLA website (Jay Mallin)
The Times-Picayune newspaper in New Orleans cannot shield private identifying information about two people who posted anonymous comments on its website about a corruption probe, a federal appeals court has ruled.
The U.S. Court of Appeals for the Fifth Circuit on Tuesday said the newspaper must disclose the information to a federal magistrate judge, for in-chambers review, in the prosecution of a former city official.
U.S. District Judge Mary Ann Vial Lemmon on Wednesday lifted a stay and gave The Times-Picayune until noon on Thursday to produce the information. The newspaper’s lawyers filed an emergency request with the appeals court to temporarily block the trial judge’s order.
Defense lawyers for the former official, Stacey Jackson, in January served a subpoena on the media company demanding all documents related to the identities of commenters with the user names “aircheck” and “jammer1954.” The subpoena seeks information including names, mailing addresses, billing information and email addresses associated with the two online aliases.
Jackson, formerly executive director of New Orleans Affordable Homeownership, was charged in a four-count indictment last year in U.S. District Court for the Eastern District of Louisiana for her alleged role in a kickback scheme. Prosecutors contend she intentionally overpaid subcontractors with federal funds to personally benefit as money flowed back to her.
Jackson’s defense lawyer is arguing prosecutorial misconduct in an effort to get the indictment dismissed. The defense believes federal prosecutors are behind “aircheck” and “jammer1954.”
The two anonymous posters on NOLA.com, the newspaper’s website, “engaged in political speech” about the Jackson investigation in comments about an article published in 2008, the paper’s attorneys said.
The Times-Picayune, represented by Fishman Haygood Phelps Walmsley Willis & Swanson, unsuccessfully moved to quash the subpoena in the trial court. The attorneys urged the Fifth Circuit to overrule the trial judge. (The appeals court on Tuesday turned down a petition for a writ of mandamus. The media company also has a pending appeal of the trial judge’s order compelling disclosure of the commenters’ information.)
“The district court’s order implicates the important First Amendment right to engage in anonymous speech,” Fishman Haygood’s Loretta Mince wrote in court papers. “A decision from this circuit will substantially impact the way federal district courts in this circuit manage discovery related to the growing issue of anonymous online speakers and bloggers.”
The two commenters, Mince wrote, “chose to exercise their right to speak out, anonymously, about a public figure and a public organization. The matter of which they spoke—the ongoing investigations into allegations of defendants’ corruption and improper use of public funds—were matters of public concern.”
The Fifth Circuit panel—Senior Judge Patrick Higginbotham presided with judges James Dennis and James Graves Jr.—on Tuesday said the trial judge balanced “the speech rights of anonymous commenters against the due process interests of Jackson” before ordering the newspaper to provide the identifying information for in-chambers review.
The order, the Fifth Circuit said, was not “clearly and indisputably erroneous.”
“[T]here is little case law illuminating how the competing interests in situations comparable to this one should be balanced,” the panel said in its per curiam ruling. “Even in the absence of precedent, however, we cannot say that the district court here clearly reached the wrong decision.”
Mince declined to comment on Wednesday. A lawyer for Jackson, Edward Castaing Jr. of New Orleans’ Crull, Castaing & Lilly, was not immediately reached for comment.