Judge orders Times-Picayune to turn over information on two commenters

Overruling objections from the newspaper, a federal judge Wednesday ordered The Times-Picayune to provide a magistrate judge with information about two users of the newspaper’s website who posted critical pseudonymous comments about former New Orleans Affordable Homeownership Director Stacey Jackson.

The newspaper must turn over the information about “aircheck” and “jammer1954” to U.S. Magistrate Judge Joseph Wilkinson by April 1, according to the ruling by U.S. District Judge Mary Ann Vial Lemmon. Both posted comments about Jackson, who faces federal charges of taking kickbacks from contractors who got work from the quasi-city agency she headed after Hurricane Katrina.

The pair were first flagged by Wilkinson, who suggested their comments sounded as if the writers might be federal prosecutors or other law enforcement officials because of the jargon they used.

Jackson’s attorney, Eddie Castaing — who has been trying to build a claim for prosecutorial misconduct based on comments about Jackson that former Assistant U.S. Attorney Sal Perricone has admitted making — seized on Wilkinson’s suggestion. Castaing last month subpoenaed The Times-Picayune for information about “aircheck” and “jammer1954,” and Wilkinson authorized the subpoenas.

When the newspaper objected, saying the commenters’ First Amendment rights to post anonymously were being violated, Wilkinson said he would examine the information himself, and provide it to Castaing only if the information suggested the two were in fact federal officials.

Lori Mince, an attorney for the newspaper, asked Lemmon to overturn Wilkinson’s ruling, arguing that before ordering the newspaper to produce the information, Lemmon had to consider whether the comments would warrant dismissal of the indictment if the commenters proved to be federal officials. She said that was unlikely to happen, given that their comments were relatively innocuous — and certainly less inflammatory than those known to have been posted by Perricone. She noted the comments were posted nearly five years before Jackson was indicted on corruption charges.

Mince also argued that the information in the newspaper’s possession is unlikely to clearly identify “aircheck” and “jammer1954.” People who comment on stories posted at nola.com need only provide the newspaper with an email address, not their actual identities.

Jackson’s subpoena seeks various other items that the newspaper may or may not have, including “IP (Internet Protocol) logs, IP address information at time of registration and subsequent usage.”

But Mince said she does not know the commenters’ identities, and that the information the newspaper has may simply show which Internet service provider or coffee shop with free Wi-Fi the commenters used.

That’s fine, Castaing retorted at a March 20 court hearing: Armed with that information, he could then subpoena Cox or BellSouth or whichever Internet service provider the commenters used.

“They’re saying we don’t have to give this to you until you prove they’re public officials,” he complained. “How am I going to prove it without this information? They’re holding the keys to the kingdom right now.”

Later, he fumed: “I’m being held back by the TP on some theoretical basis, some bogeyman defense.”

Mince said Wednesday that the newspaper is evaluating Lemmon’s ruling and deciding how to proceed.

Jackson’s quest to have her indictment quashed is one of many ongoing dramas resulting from the commenting scandal that erupted in then-U.S. Attorney Jim Letten’s office two years ago. Landfill magnate Fred Heebe, who was then a target of a broad federal probe, filed a civil suit saying Perricone had defamed him in pseudonymous comments, using the handle “Henry L. Mencken1951.” Perricone confessed to using that alias and later acknowledged using others.

A few months later, Letten’s top assistant, Jan Mann, also admitted using an alias to comment about federal targets at nola.com. She and her husband, prosecutor Jim Mann, resigned a few weeks later, and Letten, then the nation’s longest-serving U.S. attorney, also stepped down.

In the wake of the fallout, the feds dropped their probe of Heebe’s business dealings, and U.S. District Judge Kurt Engelhardt cited the commenting scandal as a primary basis for setting aside the guilty verdicts against five former New Orleans police officers in the Danziger Bridge shootings case.