5th Amendment trumps 1st in prosecution involving unnamed commenters

By Alison Frankel
April 9, 2014

When an anonymous speaker’s First Amendment rights conflict with a criminal defendant’s right to due process under the Fifth Amendment, which constitutional protection prevails?

There’s actually not a lot of precedent on how to balance those competing constitutional protections, according to a ruling Tuesday by the 5th U.S. Circuit Court of Appeals. The U.S. Supreme Court has gone out of its way to protect unnamed speakers, hearkening back — most recently in its 1995 ruling in McIntyre v. Ohio Elections Commission — to this country’s long tradition of anonymous political speech. On the other hand, the trial judge in the case before the 5th Circuit believed there was a reasonable possibility that the unmasking of two pseudonymous commenters to an online news article would reveal misconduct by federal prosecutors. Tuesday’s opinion left the 5th Circuit with a chance to change its position some day, but for now, the court said, it’s sticking with the trial judge: The Fifth Amendment trumps the First when anonymous online comments are possible evidence of due process violations.

The circumstances of the case that prompted the 5th Circuit’s holding were, to quote the opinion, “extraordinary.” Last June, after a years-long investigation, the former director of the non-profit New Orleans Affordable Homeownership was indicted by a federal grand jury for allegedly accepting kickbacks from contractors her group employed to repair houses damaged by Hurricane Katrina. Two months after the director, Stacey Jackson, was charged, U.S. District Judge Kurt Engelhardt of New Orleans issued a stunning opinion in a different Katrina corruption case against several former New Orleans police officials. Engelhardt vacated their convictions, finding rampant misconduct by a former first assistant and senior litigation counsel in the New Orleans U.S. Attorney’s office. Among their misdeeds: anonymous online comments and blog posts about ongoing investigations, prosecutions and even trials. To call the posts intemperate would be to understate drastically their offensiveness.

Three days after Engelhardt issued his opinion, Jackson’s lawyers at Crull, Castaing & Lilly filed a motion to compel the government to turn over the report on its internal investigation of misconduct at the U.S. Attorney’s office. The motion argued(among other things) that defense lawyers had already pressed prosecutors to disclose whether bad apples had posted anonymously about Jackson, but the government had stonewalled. To support the discovery motion, Jackson’s lawyers attached a printout of an online 2008 article about the Jackson investigation at the Times-Picayune’s Nola.com site. The article drew 55 comments, including one signed with a pseudonym used by a former assistant prosecutor cited for misconduct in Judge Engelhardt’s opinion.

The federal magistrate judge in Jackson’s case, Joseph Wilkinson, declined to hand over the internal report to Crull Castaing. But he did single out two anonymous comments on the Times-Picayune’s 2008 article — one signed by “aircheck” and the other by “jammer1954″ — that were posted at around the same time as the comment apparently attributable to the disgraced former assistant U.S. Attorney. If defense lawyers could come up with evidence that those two comments came from management-level prosecutors or investigators or from Justice Department employees directly involved in her case, Wilkinson said, Jackson might be able to establish a pattern of prosecutorial misconduct that violated her due process rights.

Jackson’s lawyers promptly subpoenaed the Times-Picayune to provide identifying information about the two anonymous posters from 2008. The newspaper, represented by Fishman Haygood Phelps Walmsley Willis & Swanson, moved to quash the subpoena, arguing that under widely accepted standards for whether to expose anonymous online posters in civil litigation, first set out in Dendrite v. Doe, the First Amendment rights of the anonymous Nola.com bloggers should protect their identity. Jackson hadn’t provided any evidence beyond supposition that the posts were by federal lawyers or investigators, the newspaper said, and even if they were, it wasn’t clear how two comments buried under a 2008 news story were proof that Jackson’s 2013 indictment was tainted by prosecutorial misconduct.

Judge Wilkinson, in the opinion codified Tuesday by the 5th Circuit, said there are limits on the First Amendment rights of anonymous speakers, especially when those speakers may be federal prosecutors or investigators. The evidence he’d seen in the report on the Justice Department’s internal investigation of the New Orleans U.S. Attorney’s office, he said, had convinced him that Jackson’s subpoena for information from the Times-Picayune was based on more than mere speculation — so she had a right to pierce the commenters’ First Amendment protection. The internal report, in addition to the timing of the three comments on the 2008 article, were “sufficient in my view to establish that Jackson has at least a colorable claim of prosecutorial misconduct, that the identity of these two commenters is relevant to it, and that she cannot adequately prepare that defense without access to those identities,” Wilkinson wrote.

To add a layer of protection for the commenters, the judge ordered the newspaper to produce the identifying materials to him. That way, he said, he could determine whether they were relevant to Jackson’s defense before any innocent commenter was exposed. The Times-Picayune asked the trial judge, U.S. District Judge Mary Ann Lemmon, to reconsider the magistrate’s decision. She asked that the newspaper provide her with a list of additional comments at Nola.com mentioning Jackson by name, and that the government file a brief outlining the procedural history of the Jackson investigation. Even though the government brief disclosed that the grand jury that indicted Jackson was empaneled more than four years after the publication of the Times-Picayune’s 2008 story with the suspicious comments, Judge Lemmon adopted Magistrate Judge Wilkinson’s ruling and ordered the newspaper to produce material to identify the anonymous commenters.

In the newspaper’s petition asking the 5th Circuit to reverse Lemmon for reaching a clearly erroneous decision, Fishman Haygood cited a string of cases calling for application of a balancing test that the magistrate and Lemmon ignored. (I’ve described the test, which sets a high bar for unmasking anonymous online posters, in a previous story about a Washington, D.C., carpet cleaner’s quest to uncover the identity of an unsatisfied customer who posted a negative review at Yelp; if you want a recent recap of the case law, take a look at U.S. District Judge Ellen Hollander’s ruling in July 2013 in In re Subpoena of Daniel Drasin.) “The district court’s order implicates the important First Amendment right to engage in anonymous speech and raises an important issue of first impression for this court: What right (to) anonymity do individuals who engage in anonymous speech on the Internet have against a subpoena issued in (a) proceeding for which they are not a party?” the newspaper wrote.

But the 5th Circuit panel — Judges Patrick Higginbotham, James Dennis and James Graves — was unconvinced the newspaper satisfied the incredibly stringent requirements for a writ of mandamus. Judge Lemmon wasn’t clearly in the wrong, the panel said. In fact, she might well have been right to order the newspaper to produce identifying materials. “In the absence of precedent,” the opinion said, “we cannot say that the district court here clearly reached the wrong decision.”

Times-Picayune counsel Loretta Mince of Fishman and Jackson told me that the 5th Circuit doesn’t mean the appeals court agreed or disagreed with Lemmon’s holding, but simply that the trial judge’s decision didn’t merit an extremely rare grant of mandamus. The newspaper also filed an ordinary appeal of the order that it turn over identifying information, and Mince said she’s hopeful the 5th Circuit will find for the Times-Picayune when the newspaper isn’t seeking mandamus.

An early indicator of the Times-Picayune’s chances will be the appeals court’s reaction to a stay motion Fishman Haygood filed Wednesday, after Judge Lemmon ordered the newspaper to turn over identifying materials to the magistrate.

Jackson defense lawyer Edward Castaing of Crull Castaing didn’t return my phone call.

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