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.