Alternative Weekly Allegedly Published Sherriff’s Home Address
The founders of The Phoenix New Times, an alternative weekly newspaper, were arrested Oct. 18, 2007 for publishing a story about an ongoing grand jury investigation.
The Maricopa County (Ariz.) Sheriff released both men on bond within 24 hours, The New York Times reported October 20. Authorities also dropped the charges and halted the underlying grand jury investigation on October 19.
Plainclothes sheriff’s deputies arrested New Times executive editor Michael Lacey, and chief executive officer Jim Larkin, at their homes October 18 for publishing a story about a grand jury investigation headlined “Breathtaking Abuse of the Constitution” earlier that day, an October 18 story posted on the New Times Web site said.
Ariz. Rev. Stat. Ann. section 13-2812 (2007) makes disclosure of any information relating to a grand jury investigation, including its existence, a class one misdemeanor. The maximum penalty for violating the law is six months in jail and a $2,500 fine.
Lacey and Larkin also control Village Voice Media, the New Times’ parent company, the October 18 New York Times story said. The company owns several alternative weeklies, including The Village Voice in New York City.
In the story that resulted in their arrest, Lacey and Larkin noted that publishing the information might violate the law. “It is, we fear, the authorities’ belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.”
The story reported that special prosecutor Dennis Wilenchik, appointed by Maricopa County Attorney Andrew Thomas, had subpoenaed every article, and any documents related to those articles, published by the New Times about Maricopa County Sheriff Joe Arpaio after Jan. 1, 2004. Lacey and Larkin included a link to the full text of the Aug. 27, 2007 subpoena in the online version of the story.
In addition to the stories and reporters’ notes, the subpoena sought all documents related to the newspaper’s editing and pre-publication review procedures, the IP address of every computer to visit the New Times Web site during that time period, and information detailing the Internet browsing history of those computers.
Wilenchik convened the grand jury to investigate a series of stories about Arpaio published by the New Times. According to an October 18 story on the New Times Web site, those stories resulted from the newspaper’s ongoing investigation into Arpaio’s real estate holdings and alleged he paid up to $1 million in cash for some of his investments. One of the stories, which remains posted online, listed the sheriff’s home address in violation of Arizona law.
Ariz. Rev. Stat. Ann. section 13-2401 (2007) makes online publication of a peace officer’s personal information, including a home address, a class five felony “if the dissemination of the personal information poses an imminent and serious threat to the peace officer’s ... safety or the safety of that person’s immediate family and the threat is reasonably apparent” to the publisher. The statute also covers other public officials including county attorneys and judges, but does not prohibit printed publication of the same information.
After his release, Lacey told reporters gathered outside the Phoenix jail that the story should be the subpoena, and the sheriff’s attempt to suppress stories about his investments, not the arrests. “The fact that they want to have the identity, the browsing habits, the buying habits, what shopping carts people have filled, what sites people have visited on the Web before they came to us, what sites they visited after they left us. The fact that they have subpoenaed that kind of information, all of which is in our paper and on our Web site is what the story’s about. It’s not about me getting out of jail at four in the morning,” Lacey said, according to an October 19 story posted on the New Times Web site.
According to an October 19 report in The New York Times, Steve Suskin, a lawyer for Village Voice Media, said the arrests escalated an ongoing conflict between the Phoenix newspaper and the local sheriff. “It is an extraordinary sequence of events,” Suskin said. “The arrests were not totally unexpected, but they represent an act of revenge and a vindictive response on the part of an out of control sheriff.”
Shortly after Lacey and Larkin were released from jail on October 19, County Attorney Thomas announced that all charges would be dropped and the underlying subpoena and grand jury investigation would also end, The New York Times reported October 20. Thomas said that he did not realize until Lacey and Larkin published their story that Wilenchik’s investigation had been so broad.
“There have been serious missteps in this matter,” he said, according to an October 20 story in The (Phoenix) Arizona Republic. “I am announcing that Mr. Wilenchik will no longer serve as special prosecutor.”
“It has become clear to me that this investigation has gone in a direction that I would not have authorized,” he said. The Arizona Republic said Thomas said he continued to believe Wilenchik was a good attorney, but that he would no longer be employed by the county on criminal matters. According to a November 1 New Republic story, the county has paid Wilenchik’s firm nearly $2 million in fees since 2005, but mainly in civil matters related to the sheriff’s office.
The New York Times reported October 20 that two commentators agreed the subpoena had been out of line. “That subpoena is grossly, shockingly, breathtakingly overbroad,” James Weinstein, a professor of constitutional law at the Sandra Day O’Connor College of Law at Arizona State University told The New York Times. “This is a case of harassment of the press.”
Clint Bolick, a litigator at the conservative Goldwater Institute, called the subpoena “the most sweeping deprivation of privacy and First Amendment rights I’ve ever seen,” The New York Times reported.
Wilenchik responded to the criticism with an eight-page letter released October 25 and posted on the New Times Web site. He explained that the IP addresses of the computers accessing the New Times Web site were necessary to prove that the newspaper had reason to know its continued publication of the sheriff’s address caused an imminent threat to Arpaio’s safety. Wilenchik said he had planned to cross-check the IP adresses of the computers that visited the site against a list of IP addresses from computers owned by people from whom Arpaio had received threats.
Wilenchik said that the New Times never turned over any documents, and their motion to quash the subpoena had not been heard by the judge presiding over the investigation. “Had the New Times followed the legal process as proscribed [sic] by law, they would have spared many people much unnecessary concern and angst. But that is what the media appears to thrive on rather than reporting the sober truth.”
Wilenchik said in the letter that the statute preventing online publication of personal information about public officials was designed to protect those officials. He said Arpaio and other public officials deserved to have the constitutionality of the statute tested in court. “Sheriff Arpaio and his family, who are the victims in the underlying investigation, is [sic] now being victimized more than ever,” Wilenchik wrote.
County Attorney Thomas expressed a similar opinion at an October 23 news conference. He said a story posted October 22 to www.azcentral.com, a Web site shared by The Arizona Republic and Channel 12 News, contained a link to his home address. He said the appearance of the story on a site that receives more than 1 million hits per day forced him to dispatch armed guards to escort his children to school and protect his home.
“I am stunned some media outlets would jeopardize the safety of my family in this manner,” Thomas said. “I will now be forced to take precautions to protect my family and myself.”
Thomas said he would not attempt to prosecute the news organizations for violating section 13-2401. “I’m not willing to turn these people into some sort of Peter Zenger, some sort of martyr, they’re not,” he said. The Web site removed the story shortly after the news conference in response to Thomas’ concerns. Editors explained in an October 24 New Republic article that the story containing the link had been intended to show personal information is easily accessible on the Internet.
According to the October 20 New York Times report, Wilenchik had done extensive work for Arpaio and Thomas prior to the grand jury investigation, and a motion was pending to appoint a new special prosecutor when the investigation was dropped. The Arizona State Bar Association also began an investigation October 19 into accusations that Wilenchik attempted to communicate with the judge outside the courtroom, a violation of the Rules of Professional Conduct governing attorney behavior.
According to The Arizona Republic, the New Times sent a letter dated November 6 to Arpaio, Thomas, Wilenchik, the Maricopa County Board of Supervisors and Pinal County Attorney James Walsh which announced the New Times’ intent to pursue legal action for events surrounding the arrests of Lacey and Larkin and demanded that the agencies preserve documents relating to the New Times investigation and all financial exchanges between the parties.
The Arizona Republic reported November 17 that documents showing how the subpoenas were obtained and executed were missing from a court file. As a result, Presiding Criminal Court Judge Anna Baca ordered the Maricopa County Attorney’s Office to find and turn over those documents and appear at a hearing on November 26.
- Michael Schoepf, Silha Research Assistant