ACLU urges R-J not to reveal those who commented online

The American Civil Liberties Union has asked the Review-Journal to refuse or delay releasing information about any of the people who posted remarks on the newspaper's Web site about a federal criminal trial. Meanwhile, newspaper lawyers are preparing to turn over information on two particular writers.

The newspaper considers it a victory that federal prosecutors narrowed their original, now superseded grand-jury subpoena seeking identities of all people who had posted online in connection with a May 26 article about the tax trial of Robert Kahre and three defendants. The subpoena is essential to protect jurors or prosecutors from threats conveyed in the posts, government lawyers have told David Ezra, the trial judge.

But the ACLU of Nevada believes the newspaper's compromise -- which R-J counsel negotiated with the U.S. Attorney's Office -- still fails to protect free speech.

"It will make people think," ACLU counsel Allen Lichtenstein explained, "that if they post negative comments about the government, they stand a chance of being hauled before a grand jury to explain themselves. And that is a chilling effect."

Calling the decision "unfortunate," Lichtenstein said he hoped the newspaper will hold off turning over the information until after a judge has ruled on the constitutionality of the original, wide-ranging subpoena and its milder replacement. But Review-Journal lawyer Mark Hinueber said Wednesday afternoon it was in the paper's "best interest" not to postpone complying with the revised subpoena.

The ACLU has questioned the constitutionality in a motion it filed Wednesday to intervene, quash the present subpoena and obtain a protective order that stops the government effort to trace the source of comments, by prohibiting the government from issuing subpoenas to the writers' Internet service providers.

One of the two online comments calls the jury members "dummies" and says they should be hung if they convict Kahre. The other comment, which the Review-Journal pulled from its site on the grounds that it violated newspaper policy, talked about placing bets on whether a specific federal prosecutor would reach his next birthday.

Ezra met with Lichtenstein and two newspaper lawyers Wednesday morning to tell them he was recusing himself from the legal action involving the subpoena, which is a separate matter from the trial itself. U.S. District Judge Kent Dawson will hear the ACLU motion, but no hearing date is yet set.

Lichtenstein drew a distinction between genuine and idle threats.

"Neither of the two statements are true threats, although they may be hyperbole or in bad taste," he told a reporter after the meeting with Ezra.

The lawyer said the ACLU worries that if writers of the two suspect comments go before a grand jury, they might be forced to disclose what they know about other people who also posted. In the federal court system, a witness is not allowed to bring in his or her own attorney when testifying before a grand jury.

The ACLU lawyer also acknowledged that his organization has relationships with two individuals on the defense side in the Kahre case but that doesn't cause, or change, its interest in the subpoena. The organization takes no position on the merits of the case or the trial outcome, he emphasized.

Defendant Alex Loglia, who recently completed law school at UNLV, served an internship at the local ACLU office in spring. Defense lawyer Lisa Rasmussen is on the board of the ACLU here.

Ezra, who is "on loan" from Hawaii's federal court district, described himself in an April 15 evidence hearing for the Kahre case as a "real First Amendment advocate" in several cases he handled in that state. He also recently ruled in favor of free speech, by striking down a Las Vegas ordinance the city was using to control who can distribute literature at the Fremont Street Experience, a public space downtown.

When Ezra learned that Kahre prosecutors had subpoenaed to identify readers posting online, he took time, outside the jurors' presence, to discuss the topic with both sides of attorneys. He called the flood of pro-Kahre comments online an "orchestrated effort to present information that was very negative about the government and very positive about the defense. That's fine." But he said his concern is to keep the jury "pristine," by making sure jurors do not follow news of the trial or the subpoena controversy.

Christopher Hansen of Pahrump, who also calls himself a First Amendment advocate, told the newspaper he e-mailed about 50 friends, urging them to post pro-Kahre comments on the Review-Journal Web site. He also posted several comments, using various false names, under articles about the trial or the June 7 column about the subpoena by Editor Thomas Mitchell.

But Wednesday, Hansen added that he has never used his own name to post about Kahre, so some comments which were signed with his name actually came from other writers.

Some entries cite ways to obscure one's identity while posting online -- such as sending comments from another person's computer, or providing false personal information to access a Web site.

"FatWhiteMan," for example, seemed to be alluding to the subpoena on June 11, when he or she wrote below the June 7 column, "And yet, some folks wonder why on sites that require registration, that I am a 105-year-old black lesbian living in New Jersey."

Contact reporter Joan Whitely at jwhitely@reviewjournal.com or 702-383-0268.