The Times-Picayune asked a federal judge Thursday to put the brakes on her order that it turn over by next week any identifying information about two pseudonymous commenters who made disparaging online remarks about former New Orleans Affordable Homeownership Director Stacey Jackson. The newspaper wants time to appeal that ruling.
U.S. District Judge Mary Ann Vial Lemmon ordered the paper Wednesday to turn over information about commenters “aircheck” and “jammer1954” to U.S. Magistrate Judge Joseph Wilkinson by April 1 so that he can review the information and try to determine whether those aliases belonged to federal prosecutors or law enforcement officials.
Attorney Eddie Castaing, who is representing Jackson in the federal case charging her with taking kickbacks from contractors who worked with her agency after Hurricane Katrina, has sought information about those commenters in an attempt to prove prosecutorial misconduct.
In asking for time to appeal Lemmon’s decision, lawyer Lori Mince, who is representing The Times-Picayune, wrote that turning over the information would immediately and irreparably damage the commenters’ First Amendment rights. It would also have a “chilling effect” on anonymous speech on Nola.com, the paper’s website, she said.
Allowing time for the appeal to the 5th Circuit Court of Appeals “will serve the public interest because requiring compliance with the order will have an immediate chilling effect on First Amendment rights and resolution of these issues is necessary to adequately protect the interests of online discussion forums and past, present, and future anonymous speakers,” Mince said.
The time the appeal would take would not harm Jackson’s rights as a defendant, she wrote.
Castaing subpoenaed information about the two commenters last month after Wilkinson flagged their online remarks as seeming to come from inside sources. Castaing was already pursuing a line of argument alleging prosecutorial misconduct in the case due to pseudonymous comments former Assistant U.S. Attorney Sal Perricone has admitted making.
The Times-Picayune argued against releasing the information on First Amendment grounds. Mince also argued it was unlikely the comments were so serious as to warrant tossing out the indictment and noted that they were posted almost five years before Jackson was indicted.
Lemmon acknowledged the free speech issues at stake in the case but ruled that Jackson’s rights as a defendant take precedence. Her order would let Wilkinson review any identifying information provided by the paper and then turn that information over to attorneys, only if there was an indication the commenters were connected to prosecutors or law enforcement.