Criminal

Some Thoughts on the Phoenix New Times Arrests

There's been extensive coverage (here, here, here, and here, to start) of the arrest and subsequent dismissal of charges against Michael Lacey and Jim Larkin, the founders of the Phoenix New Times, a print newspaper that also publishes on its website. I'll add my voice to the chorus in order to elaborate on some of the legal issues at stake.

The facts are as follows: Starting in July 2004, the Phoenix New Times published a number of articles critical of Maricopa County Sheriff, Joe Arpaio. In one article published on its website in 2004, the newspaper disclosed Arpaio's home address as part of a story raising questions about his real estate holdings. The address was available in public records on the County Recorder and State Corporation Commission websites.

Authorities in Maricopa County began a criminal investigation of the newspaper for violation of section 13-2401 of the Arizona Revised Statutes, which makes it a felony to

knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent.
Notice that the statute only applies to publication on the Internet, not to print publications. The New Times filed a lawsuit in federal court in Arizona seeking a declaration that section 13-2401 violates the First Amendment to the U.S. Constitution and an injunction barring Maricopa County law enforcement officials from investigating or prosecuting the newspaper for violation of the statute.

Jurisdiction: 

Content Type: 

Subject Area: 

Maricopa County v. Phoenix New Times

Date: 

07/01/2007

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

Phoenix New Times; Michael Lacey; Jim Larkin

Type of Party: 

Government

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of Arizona, County of Maricopa

Case Number: 

No. 430-GJ97

Legal Counsel: 

Michael Meehan, Tom Henze, Janey Henze

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Starting in 2004, the Phoenix New Times published a number of articles critical of Maricopa County Sheriff, Joe Arpaio. In one article published on its website in 2004, the newspaper disclosed Arpaio's home address as part of a story raising questions about his real estate holdings.

Authorities in Maricopa County began a criminal investigation of the newspaper for violation of section 13-2401 of the Arizona Revised Statutes, which makes it a felony to publish the personal information of a "peace officer" on the Internet, if the dissemination of that information poses a serious and imminent threat to officer's safety.

The New Times filed a lawsuit in federal court in Arizona seeking a declaration that section 13-2401 violates its rights under the First Amendment to the U.S. Constitution. The newspaper also sought an injunction barring Maricopa County law enforcement officials from investigating or prosecuting the newspaper for violation of the statute.

While this litigation was ongoing, in late August 2007, the parent company of the New Times received a grand jury subpoena issued at the request of Dennis Wilenchik, a special prosecutor hired by the Maricopa County Attorney's Office to handle the criminal case against the New Times. The subpoena was extremely broad. It asked for all documents related to any articles published about Sheriff Arpaio from January 1, 2004 to the present. More surprising, it asked for extensive information about all online readers of the New Times from January 1, 2004 to the present, including IP addresses, date and time of visit, type of browser, and websites visited before coming to the New Times site.

The newspaper filed a motion to quash the subpoena in Arizona Superior Court in Maricopa County. On October 18, Michael Lacey and Jim Larkin, the founders of the New Times, published an article on the newspaper's website entitled "Breathtaking Abuse of the Constitution." The article discussed the grand jury subpoeana in detail, criticized its breadth, and detailed what the authors believed were irregularities in the prosecution's handling of the case. Significantly, Lacey and Larkin posted a PDF of the full text of the subpoena on the website along with the article.

The same day the article was published, the Maricopa County police arrested Lacey and Larkin for violating section 13-2812 of the Arizona Revised Statutes, which makes it a misdemeanor criminal offense for anyone to disclose any "matter attending a grand jury proceeding."

The arrest received widespread media attention, and a storm of criticism ensued. On October 19, in the face of public outcry, Maricopa County Attorney Andrew Thomas announced that his office was dropping all criminal charges against the newspaper and that he had removed special prosecutor Wilenchik from the case. (A video of the County Attorney's public statement is available on the Phoenix New Times site.)

On October 19, Phoenix Newspapers Inc. and KPNX-TV filed a motion requesting the Arizona Superior Court to publicly release documents related to the grand jury investigation, presumably including the subpoena. County Attorney Thomas has announced his support for this request. On October 24, the court released the requested documents, indicating that release was appropriate in part because the New Times had reported the existence of subpeonas on October 18, and in part because other documents in the file did not need to be kept secret to protect the grand jury process and the matter was of public concern.

Jurisdiction: 

Content Type: 

Subject Area: 

Doe v. Bates

Date: 

05/09/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

John Doe

Party Receiving Legal Threat: 

Mark Bates; Yahoo! Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

Federal

Court Name: 

Eastern District of Texas

Case Number: 

5:05CV00091

Legal Counsel: 

John Crisp, Patrick Carome, Samir Jain

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The parents of a child who was victimized by an online pornography group filed a lawsuit against Yahoo! alleging that it knowingly hosted illegal child pornography on the "Candyman" Yahoo! Group. The plaintiffs sued both the moderator of that "e-group" (who was criminally convicted and imprisoned for his involvement) and Yahoo!

On December 27, 2006, the district court dismissed the case aginst both defendants. The court applied the Communications Decency Act (47 U.S.C. sec. 230) and stated that immunity for service providers is not lost when the conduct in question is a criminal act.

Jurisdiction: 

Content Type: 

Subject Area: 

State of Oklahoma (Gene Stipe) v. King

Date: 

08/16/2005

Threat Type: 

Criminal Investigation

Party Issuing Legal Threat: 

State of Oklahoma; Gene Stipe

Party Receiving Legal Threat: 

Harold King

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Harold King runs the forum site "McAlester Watercooler," which he describes as a forum for citizens of McAlester, Oklahoma to "voice their views about the on-going City events." In August 2005, former state senator Gene Stipe filed a police report alleging that King had published false information about Stipe and his family on the forum (the precise nature of the statements was not disclosed).

The police passed Stipe's complaint and evidence on to the local district attorney, but the district attorney did not pursue criminal charges.

Oklahoma has a criminal libel statute, making libel "punishable by imprisonment in the county jail not more than one (1) year, or by fine not exceeing One Thousand Dollars ($1,000.00), or both." 21 Okla. Stat. § 773. "Libel" is defined as "a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends." 21 Okla. Stat. § 771.

Jurisdiction: 

Content Type: 

Threat Source: 

MLRC

Subject Area: 

State v. Baumgartner

Date: 

06/20/2005

Threat Type: 

Criminal Charge

Party Issuing Legal Threat: 

State of Ohio

Party Receiving Legal Threat: 

Elsebeth Baumgartner; Bryan DuBois

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas, Cuyahoga County, Ohio; Ottawa County Municipal Court, Ohio

Case Number: 

No. CR-05-470184-A (Cuyahoga County)

Publication Medium: 

Blog
Email

Relevant Documents: 

Status: 

Pending

Description: 

Elsebeth Baumgartner and Bryan DuBois co-ran a blog called "Erie Voices," which posted articles and commentary alleging misconduct about local officials in a number of counties in Ohio.

In June 2005, Baumgartner and Dubois were indicted in Cuyahoga County court for intimidation, retaliation, and possession of criminal tools. The charges related to emails that Baumgartner and DuBois allegedly sent to a retired judge who had previously presided over a libel case in which Baumgartner was a defendant.

Baumgartner and DuBois were re-indicted in Cuyahoga County in August 2005, when the prosecution added a harassment charge based on emails sent to the retired judge's children after the initial indictment.

DuBois pled guilty to separate charges against him in Ottowa County and agreed to testify against Baumgartner in her trial. As a result of this deal, the charges against him in the Cuyahoga County action were dropped.

During the pendency of the criminal action, Baumgartner allegedly began threatening and harassing DuBois and his wife through postings on the Erie Voices blog. In February 2006, police in Ottowa County obtained a search warrant for Baumgartner's home seeking documents and computers related to Baumgartner's online activity. The blog was eventually shut down.

Baumgartner was convicted on multiple counts of intimidation and retaliation and sentenced to eight years in prison. She is appealing her conviction, and her sentence is stayed pending appeal.

Update:

5/11/2008 - According to the North County Gazette, Baumgartner was imprisoned after violating the terms of her stay of sentence. The court prohibited her from filing any new cases as a conditon of her release, but she filed a civil rights case in federal court on April 7, 2008.

Jurisdiction: 

CMLP Notes: 

it's hard to get a good handle on this case because the facts are extraordinarily convoluted. It could benefit from further research, but it should be a low priority as I'm not sure it would be worth the time it would take to filter through all the facts.

need to get status if possible

Status checked on 6/9/2008. An appeal seems to be pending, according to North County Gazette article about Baumgartner's arrest. The article didn't say anything about how the arrest affected her appeal. (AAB)

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Boulder County Sheriff v. MySpace

Date: 

11/11/2006

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

Boulder County Sheriff

Party Receiving Legal Threat: 

MySpace

Type of Party: 

Government

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

MySpace provided records subpoenaed by the Boulder County sheriff's department in a criminal libel investigation, commenced after a Colorado woman reported finding pictures of herself on MySpace under a fake profile named "Dirty Whore" that included information indicating that she was interested in meeting "men, women and/or couples who are looking to have a fun time."

Jurisdiction: 

CMLP Notes: 

SB Reviewed; there is almost nothing available on this as far as I can tell. TO-DO: Get more precise date; further research required

Content Type: 

Threat Source: 

MLRC

Subject Area: 

State of Colorado v. Mink

Date: 

12/13/2003

Threat Type: 

Criminal Investigation

Party Issuing Legal Threat: 

State of Colorado

Party Receiving Legal Threat: 

Thomas Mink

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Colorado District Court, County of Weld

Legal Counsel: 

A. Bruce Jones, Marcy Glenn, Mark Silverstein (ACLU)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

While a student at the University of Northern Colorado, Thomas Mink created a website called the "Howling Pig," which dealt with issues of current interest at the University. Among other things, the website parodied the views of a professor at the University. The professor complained to the local police department, and they commenced an investigation of Mink for violation of Colorado's criminal libel statute.

Colorado law makes it "criminal libel" to knowingly publish any statement tending to "impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule." Colo.Rev.Stat. Sec. 18-13-105.

In December 2003, the Colorado police obtained a search warrant, searched Mink's house, and seized his computer and written materials.

In January 2004, Mink sued various government officials in the United States District Court for the District of Colorado, challenging the criminal libel statute as a violation of the First Amendment to the United States Constitution. The district court granted Mink a temporary restraining order prohibiting his prosecution under the criminal libel statute and requiring the district attorney to return Mink's computer and all of its contents.

Later, the district court dismissed Mink's suit when the district attorney's office disavowed an intent to prosecute. Mink appealed, and the Tenth Circuit affirmed dismissal of the constitutional challenge on standing and mootness grounds.

Update:

9/10/2009 - Mink petitioned for a rehearing en banc (in front of the entire Tenth Circuit) which was denied.  The State then petitioned the U.S. Supreme Court to review the case.  The Supreme Court declined and sent the remaining claims back to the district court.  The district court dismissed the remaining claims.  Mink is now appealing to the Tenth Circuit.

7/19/2010 - Tenth Circuit reversed, holding that "Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink's property." 

Jurisdiction: 

Content Type: 

Subject Area: 

Guajome Park Academy v. DuPerry

Date: 

03/24/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Guajome Park Academy, Inc.

Party Receiving Legal Threat: 

Beau DuPerry; David McCulloch

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of California

Case Number: 

3:06CV00658

Verdict or Settlement Amount: 

$11,200.00

Legal Counsel: 

Arthur Floyd Sloane (Defendant DuPerry); Pro Se (Defendant David McCulloch)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (partial)

Description: 

A group of former school employees started a website called Guajome Underground to rally school students, parents, and current and former employees to remove the school superintendent. The school claims that it discovered numerous instances of unauthorized access to a school database containing confidential information about students, including grades. The school alleges that confidential information, including the grades of a student, were posted to a "restricted" forum section of guajomeunderground.

The school sued a former student, Beau DuPerry, and a then-current employee, David McCulloch, for accessing the database and posting the confidential information, allegedly in violation of the Computer Fraud and Abuse Act and provisions of California criminal law that provide for a private cause of action. DuPerry settled and agreed to cooperate with the school. The school moved to amend its complaint in November 2006, seeking to add others defendants who allegedly had access to the forum, as well as a civil conspiracy claim and a breach of contract claim (against McCulloch only). The court granted in part and denied in part the motion to amend the complaint (it appears that the court did not permit Guajome to add additional defendants). McCulloch moved for summary judgment in July 2007, and the court denied that motion in August 2007.

Updates:

7/13/2006 - Guajome Park settled with Defendant DuPerry - $11,200

12/11/2006 - Amended Complaint filed against Defendant McCulloch

7/9/2007 - McCulloch filed motion for summary judgment

8/16/2007 - Court denied McCulloch's motion for summary judgment

11/19/2008 - Court granted in part and denied in part Guajome Park's motion for reimbursement of fees

1/21/2009 - Court granted ex parte motion to continue mandatory settlement conference

11/24/2008 - Trial is scheduled to commence on 5/26/2009

Jurisdiction: 

CMLP Notes: 

SB Reviewed; to-do: get additional court documents

Status checked on 6/4/2008, case appears to be heading to trial. (AAB)

Updated 2/26/09 - VAF

Content Type: 

Threat Source: 

MLRC

Subject Area: 

First Criminal Online Libel Verdict in Bhutan

Kuensel Online, the electronic version of Bhutan's English-language national newspaper, reported last week that a man who posted comments on its discussion forums was convicted of criminal libel:

On July 16 the Paro district court sentenced an employee of the National Housing Development Corporation (NHDC) to one year in prison, with an option to pay thrimthue, in the first ever online defamation case in Bhutan. The thrimthue of Nu. 36,000, in lieu of one year imprisonment, has to be paid within 10 days.

Defendant Yeshey Lotay was ordered to pay compensatory damages of Nu. 36,000 each to a couple, both forest rangers, within one month of the judgment. Pema Dorji and Ugyen, both civil servants in Paro dzongkhag, had filed the case against Yeshey Lotay for defamation in a kuenselonline discussion forum in August, 2006.

According to Kuensel Online, the defendant "pleaded guilty" in his opening statement and admitted that he acted with malice and had no proof to substantiate his allegations of bribery, corruption, and misuse of power.

Although it doesn't appear that Kuensel Online or the defendant's ISP were implicated in the case, the article quotes the court as stating that regulatory authorities and Internet Service Providers share equal responsibility to regulate Internet related crime:

"The websites that solicits online discussion forums must also be equally responsible to protect from the vices of any internet related crimes and the principle of vicarious liability impugn that it is just not good enough to say that the webmaster or editors are not responsible of the content with a disclaimer clause," said the Paro drangpon.

Jurisdiction: 

Subject Area: 

Bill Proposes to Criminalize Copyright Infringement

The Electronic Frontier Foundation reports that the U.S. House of Representatives is considering criminalizing copyright infringement, again:

Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn't the first time that Congress has taken up the DoJ's copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don't need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

Among other things, the proposed legislation, entitled "Intellectual Property Enhanced Criminal Enforcement Act of 2007," would make it a crime to attempt to engage in copyright infringement, which would be punishable by imprisonment of up to 20 years.

The bill was introduced on July 24, 2007 by Rep. Steven Chabot, and is currently sitting in the House Judiciary Committee. You can track its status at Govtrack.us and at OpenCongress.org.

To find out what you can do to derail this dangerous bill, visit the EFF's Fight The Justice Department's Copycrime Proposal!

Subject Area: 

Teen Arrested for Videotaping Police

An 18 year-old from Carlisle, Pennsylvania has been charged with a felony under Pennsylvania's wiretap statute -- for videotaping a police officer during a traffic stop.

Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. [...] Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. [...] Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent.

Jurisdiction: 

Subject Area: 

N.C. Publisher Charged With Trespass For Refusing To Leave Closed Meeting

Tom Boney, publisher of the Alamance News, a weekly newspaper in Graham, N.C., was arrested and charged with trespass after refusing to leave the Burlington-Alamance Regional Airport Authority's monthly meeting.  According to the Burlington Times-News, Boney refused to leave the meeting after the airport authority voted to hold a private meeting to discuss a possible economic development project at the airport. 

Under North Carolina's Meetings of Public Bodies Act, all official meetings of public bodies are presumed to be open to the public.  The law permits closure only under nine enumerated circumstances.  It is unclear whether the airport authority met any of these conditions when it closed the meeting.  Even the sheriff who arrested Boney commented that he respects him for sticking to his convictions. "He's got a valid point about having access to public meetings," the sheriff told the Burlington Times-News.

Boney, who has long campaigned for open government meetings, is scheduled to appear in court on June 25 to address the misdemeanor trespassing charge.

UPDATE: The Reporters Committee for Freedom of the Press reported that the district attorney's office dismissed the charge on July 20, 2007, saying the incident between Boney and the authority was a "civil matter."

Jurisdiction: 

Subject Area: 

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