In Re: Times Picayune, L.L.C. ( 2014 )

Case: 14-30298 Document: 00512589774 Page: 1 Date Filed: 04/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
___________________ FILED
April 8, 2014
No. 14-30298
___________________ Lyle W. Cayce
Clerk
In re: TIMES PICAYUNE, L.L.C., doing business as NOLA Media Group,
Petitioner
_______________________
Petition for a Writ of Mandamus
for the Eastern District of Louisiana
USDC No. 2:13-CR-131-1
_______________________
Before HIGGINBOTHAM, DENNIS and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner the Times-Picayune, L.L.C., a news organization, seeks a writ
of mandamus from this court. Stacey Jackson, a former executive of New
Orleans Affordable Homeownership, an agency and nonprofit corporation of
the City of New Orleans, is currently being prosecuted in the district court for
corruption, theft of federal funds, and related charges. United States v.
Jackson, No. 2:13-CR-131 (E.D. La. filed June 6, 2013). Jackson believes that
certain anonymous and inflammatory comments about her that were made in
the comments section of an article on Nola.com, the Times-Picayune’s online
publication, may have been authored by federal prosecutors connected with her
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-30298
case and she seeks to confirm her suspicions in order to bring a claim of
prosecutorial misconduct. Cf. United States v. Bowen, No. 2:10-CR-204, 2013
WL 5233325, ___ F. Supp. 2d ___ (E.D. La. Sept. 17, 2013). The district court,
agreeing that there was a reasonable possibility that the comments were
authored by federal prosecutors, ordered the Times-Picayune to turn over
certain identifying information for in camera review. The Times-Picayune now
asks this court to vacate that order because, the company contends, it
insufficiently protects the right under the First Amendment to engage in
anonymous speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342
(1995) (recognizing that “an author’s decision to remain anonymous” “is an
aspect of the freedom of speech protected by the First Amendment”).
“The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976).
As the Supreme Court observed, “the writ has traditionally been used in the
federal courts only to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is its
duty to do so.” Id. “This is a drastic and extraordinary remedy reserved for
really extraordinary causes.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367,
380 (2004) (internal quotation marks and citation omitted). “As the writ is one
of the most potent weapons in the judicial arsenal, three conditions must be
satisfied before it may issue. First, the party seeking issuance of the writ must
have no other adequate means to attain the relief he desires—a condition
designed to ensure that the writ will not be used as a substitute for the regular
appeals process. Second, the petitioner must satisfy the burden of showing
that his right to issuance of the writ is clear and indisputable.” Id. at 380-81(citations, alterations, and internal quotation marks omitted). Thus, a
petitioner must show “not only that the district court erred, but that it clearly
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and indisputably erred.” In re Occidental Petrol. Corp., 217 F.3d 293, 295 (5th
Cir. 2000). “Third, even if the first two prerequisites have been met, the
issuing court, in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Cheney, 542 U.S. at 381.
Here, we are not persuaded that the district court’s (1) balancing of the
speech rights of anonymous commenters against the due process interests of
Jackson and (2) ordering the Times-Picayune to turn over information for in
camera review was clearly and indisputably erroneous. As an initial matter,
there is little case law illuminating how the competing interests in situations
comparable to this one should be balanced. See In re Anonymous Online
Speakers, 661 F.3d 1168, 1174-76 (9th Cir. 2011) (collecting cases). Even in
the absence of precedent, however, we cannot say that the district court here
clearly reached the wrong decision. Thus, we do not see extraordinary
circumstances here warranting issuance of the requested writ.
IT IS ORDERED that the petition for writ of mandamus is DENIED.
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