Federal Prosecutor Puts Anonymous Commenters in First Amendment Peril

A corruption case out of New Orleans has turned into a fight over an issue that might be of interest to certain users of this here website: Do commenters on a news website have an absolute right to anonymity? And it all traces back to a federal prosecutor with an out-of-control, borderline-rehab-requiring online commenting habit. Federal prosecutors: They're Just Like Us.

Last July, the feds indicted Stacey Jackson, the head of the New Orleans Affordable Homeownership (NOAH) agency, which was charged with post-Katrina rehabilitation efforts for low-income homeowners. The four-count indictment—conspiracy, accepting a bribe, theft of public funds and obstruction of justice—alleged that through NOAH, Jackson had misappropriated federal Katrina relief funds in various ways, including accepting kickbacks from contractors.

Jackson's defense team is looking into a prosecutorial misconduct defense. Among the evidence it dug up was a 2008 article on NOLA.com, the news site run by the Times-Picayune. It was a mundane news report about council members being served with a subpoena, but had a number of comments on it, including one from a user calling himself "campstblue":

well, man-you know, man. I didn't know anything about dis stuff, man, you hear what I'm saying, man. You know, man, like you always looking for something negative to write about, man. How's dis going to help the racovery, man, you hear what I'm saying, man. We just trying to make it back, man. Didn't you hear what I said man, dis is a chocolate city, man and we do things the choclate way, man–-you hear what I'm saying, man?

TRANSLATION: It's our turn to steal. We got the power. You can't do anything to us.

God Bless the US Attorneys office!!!!!!!!!

This all would have unremarkable for a terrible comments section, had subsequent investigations by Times-Picayune reporters not revealed that Sal Perricone, a former Assistant United States Attorney, was a prolific pseudonymous commenter on NOLA.com. And that "campstblue" may have been one of Perricone's ailases.

Other sockpuppet identities, confirmed to have been Perricone's work, have already caused problems in a number of cases he was involved with. Most notably, Perricone's commenting habits contributed to a judge's decision to overturn the convictions of five police officers in the notorious Danziger Bridge shootings after Hurricane Katrina. He has since "explained" that he was "stressed" and taking Ambien, which was related to this behavior.

Because Perricone was involved in the Jackson case, her attorneys have subpoenaed the hell out of the U.S. Attorney's office for material about him. In one of their submissions to the court, they appended a copy of the article in which the campstblue comment appeared, to show that they needed a better look at Perricone's comments.

The magistrate judge in the case happened to notice other suspicious-looking comments under the article (which you can see here, though the relevant comments seem to have been removed), from users named "aircheck":

The "fun" has just begun. . . Wait until the next round of subpoenas go out, then arrests will follow a little while after that etc. . .

Can't wait to hear about Stacey "ring leader" Jackson when's (sic) it's her turn to face the music. . . expect to see her rat out a few to minimize prison time she's likely to get.

Will be most interesting to see what SCUM rises to the top.

And "jammer1954":

Mark my words. The canaries are going to start singing, and Car 54 is going up in smoke.

Stacey Jackson is going to rat out every one, every body, and every thing to make the best deal for herself-after all she did this as chief of NOAH so her behavior isn't going to change.

RayRay is going down, as is Cedric and who knows who else.

Alerted to these comments by the judge, Jackson's attorneys promptly subpoenaed the Times-Picayune/NOLA.com to discover what it knew about the identities of those commenters. The attorneys asked for all documents related to those commenters, particularly documents involving the registration of the names and the IP addresses connected to the postings. There's no proof that anything in the Times-Picayune's records would actually show that those comments were made by law enforcement officials.

So the Times-Picayune, notwithstanding its own investigations into Perricone's commenting activities, contested the subpoena on First Amendment grounds. The judge in the case upheld the subpoena, pointing out that the First Amendment only provides a limited right to anonymous speech, and that that right is probably even more limited when you're, say, a federal prosecutor. She has, however, stayed her ruling while the Times-Picayune appeals this to the Fifth Circuit.

Anonymous commenters who are not federal, state, or local law-enforcement officials leaking information about investigations probably have less to worry about here. But the case does go to show: There may be some situations in which your anonymity online can and will be knocked over by a court.

A general rule of thumb might be to exercise caution when posting illiterate, Ambien-fuelled rants on articles about federal grand jury investigations, though. At least for the immediate future, until the Fifth Circuit rules on this case.

[Image by Jim Cooke.]

To contact the author of this post, please email michelle.dean@gawker.com.