Inquiry into Web remarks continues, federal judge says

"Provider One" and "Mike" -- whoever they are -- ought to know that Judge Kent Dawson said in federal court Tuesday that a grand jury investigation of them continues.

The two -- or possibly one person using two pseudonyms -- used those names when they posted comments on the Las Vegas Review-Journal Web site about the jury and a prosecutor in a federal tax evasion trial then in progress.

"Ongoing" is how Dawson described the investigation into what he called the "two commentators." He made the remark during a hearing Tuesday at which he dismissed as "moot," or outdated, an attempt by the American Civil Liberties Union of Nevada to defend free speech that came in the form of political comments posted online. The organization wanted to intervene and quash two subpoenas, the second of which caused the newspaper to turn over tracking information about the two commenters.

The judge said the matter is moot because the Robert Kahre trial is over. He disagreed with the ACLU, which argued that the subpoena issue is still "live" because Kahre and his co-defendants have not yet been sentenced and might appeal their verdicts.

Both actions could precipitate strong political opinions. The fear of more subpoenas could chill future free speech, Margaret McLetchie, the ACLU's attorney, told the judge Tuesday.

"Even if there were no current controversy, a court could still review the (subpoenas) because they are capable of repetition," McLetchie said after the hearing. Few subpoenas ever get reviewed by a judge for constitutionality because few recipients go public or fight the government in court.

Dawson's dismissal suggests that prosecutors acted within reasonable bounds when they subpoenaed the Review-Journal in June. The government initially sought vast amounts of data on all people, more than 100 at that time, who had posted about the trial, but then issued a revised subpoena seeking only two identities. The newspaper fought the first subpoena, but complied with the second.

After McLetchie made her statement in court, Dawson said he has "no problem" adding language to his order to specify that "the first subpoena was overbroad."

The Kahre trial, which attracted national attention, began in May and ended in August with guilty verdicts on most counts for the four defendants. Their sentencings are set for November.

Most of the comments posted on the newspaper Web site during the trial were critical of government actions or entities, including the Internal Revenue Service and the Federal Reserve.

"Mike" posted on May 26 that if the jurors convicted Kahre, they would be "dummies" who "should be hung."

"Provider One" wrote on June 13, "I bid 13 Quatloos that Christopher Maietta does not celebrate his next birthday." Federal prosecutor Maietta came from Washington, D.C., to help J. Gregory Damm in the trial.

Quatloos is a term used in one episode of "Star Trek."

A jury came back on Aug. 14, finding Kahre guilty of 57 counts, including evasion, fraud and conspiracy.

Dawson said federal prosecutors needed to be able to identify the writers to assess whether the online remarks were "true threats" to the jury, the cited prosecutor and the trial process itself.

The government did not disclose Tuesday whether it has identified the writers of either comment.

The ACLU was attempting to intervene on behalf of four anonymous clients, all of whom purport to have posted comments about the Kahre trial on the newspaper site.

McLetchie told Dawson on Tuesday he still could have provided relief by ordering federal prosecutors to stop using the information on "Mike" and "Provider One" -- and to destroy or return it to the Review-Journal.

On Tuesday, Dawson also unsealed more government filings in the ACLU's civil case, which the government had continued to file under seal, even after Dawson's Aug. 18 order to unseal the government's earlier filings. In its newly unsealed Aug. 19 filing, the government also refers to an "ongoing investigation" into the two commenters.

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