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.

In late August 2007, Village Voice Media, LLC, 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 under section 13-2401. According to a copy of the subpoena on the New Times website, the prosecuting attorney asked for the production of (among many other things):

  • "All documents related to articles and other content published by the Phoenix New Times newspaper, in print and on the Phoenix New Times website, regarding Sheriff Joseph Arpaio from January 1, 2004 to the present";

  • "The Internet Protocol addresses of any and all visitors to each page [on which four articles about Sheriff Arpaio are located]"; and

  • "Any and all documents containing a compilation of aggregate information about the Phoenix New Times website created or prepared from January 1, 2004 to the presentt, including but not limited to:

    • which pages visitors access or visit on the Phoenix New Times website;

    • the total number of visitors to the Phoenix New Times website;

    • information obtained from 'cookies', including, but not limited to, authentication, tracking, and maintaining specific information about users (site preferences, contents of electronic shopping carts, etc.);

    • the Internet Protocol address of anyone that accessed the Phoenix New Times website from January 1, 2004 to the present;

    • the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present;

    • the website a user visited prior to coming to the Phoenix New Times website;

    • the type of browser used by each visitor (Internet Explorer, Mozilla, Netscape Navigator, FireFox, etc.) to the Phoenix New Times website; and

    • the type of operating system used by each visitor to the Phoenix New Times website."

The newspaper filed a motion to quash the subpoena in Arizona Superior Court in Maricopa County. After Wilenchik allegedly tried to set up an ex parte communication with the Superior Court judge through an intermediary, Lacey and Larkin co-wrote an article, "Breathtaking Abuse of the Constitution," which they published on the newspaper's website on October 18, 2007. The article discussed the grand jury subpoeana in detail, criticized its breadth, and described Wilenchik's alleged efforts to contact the judge. Lacey and Larkin posted a PDF of the full text of the subpoena on the website along with the article.

Arizon state law criminalizes disclosure of confidential information about grand jury proceedings. Section 13-2812 of the Arizona Revised Statutes creates a misdemeanor offense called "unlawful grand jury disclosure":

A person commits unlawful grand jury disclosure if the person knowingly discloses to another the nature or substance of any grand jury testimony or any decision,result or other matter attending a grand jury proceeding, except in the proper discharge of official duties, at the discretion of the prosecutor to inform a victim of the status of the case or when permitted by the court in furtherance of justice.

On October 18, the Maricopa County police arrested Lacey and Larkin for violating section 13-2812 by publishing details of the grand jury subpoena in their article.

The arrest received widespread media attention, and a storm of criticism ensued (my personal favorite being Jack Shafer's article on Slate called "The Subpoena Weenie").

On October 19, in the face of public outcry, Maricopa County Attorney Andrew Thomas, himself a political ally of Sheriff Arpaio, announced that his office was dropping all criminal charges against the newspaper and that he had removed Wilenchik from the case. A video of Thomas's public statement is available on the Phoenix New Times site

In his statement, Thomas performs an awkward balancing act between explaining his rationale for dropping the charges and removing Wilenchik from the case on the one hand, and affirming that the New Times had committed crimes on the other. He repeatedly stresses his esteem for the First Amendment and his concern about "reports" that the subpoena called for "personally identifying information for everybody who had logged onto the website," but also maintains that it was "arguably illegal" for the newspaper to leak grand jury information. Thomas himself took great pains to emphasize that he was "not at liberty" to discuss the leaked information, and he self-consciously avoided confirming or denying the contents of the subpoena. He seemed comfortable enough, however, to talk about what others were reporting about it. Needless to say, this leaves the precise contours of Arizona law uncertain.

The first thing to note is that section 13-2812 is extremely broad -- by its terms it appears to cover anyone who discloses the "nature or substance" of any "matter attending a grand jury." Also noteworthy, the statute contains no exemption for materially that has previously been publicly disclosed. As this case shows, a zealous prosecutor could interpret this language broadly, and this raises serious questions for news organizations and citizen journalists reporting on criminal investigations that have entered the grand jury phase. One wonders whether any journalist publishing information about the content of a subpoena might come within the scope of the prohibition.

Evidently, news organizations are concerned about this question as well. 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. To his credit, County Attorney Thomas has announced his support for this request. (For more on this development, see the article the First Amendment Center's website.)

We thought long and hard about Arizona's limitation on publication of grand jury information before publishing this post and determined that it was appropriate to disclose the contents of the subpoena because frank description of the subpoena is necessary to further discussion and debate on the topic, and because the Maricopa County Attorney indicated an unwillingness to prosecute Lacey and Larkin, who had a much closer nexus to the grand jury proceedings than us. Furthermore, we viewed it as unlikely that an Arizona prosecutor would come after an organization based in Cambridge, Massachuesetts.

Most importantly, an interpretation of the statute that would criminalize this kind of discussion would, in our view, violate the First Amendment to the U.S. Constitution. The Supreme Court has made clear that grand jury rules must "operate within the limits of the First Amendment." Butterworth v. Smith, 494 U.S. 624, 630 (1990). While to our knowledge there is no case directly on point, there would seem to be serious overbreadth problems with a statute that barred journalists and other commentators from discussing the content of a subpoena, if the information came from a publicly available source, such as a posting on the Internet.

Such a statute would be overbroad both in terms of the people drawn under its prohibition and in terms of the type of information covered. The Arizona statute is an outlier among grand jury secrecy provisions. Most states limit the application of grand jury secrecy rules to grand jurors, government attorneys, and others present during the grand jury proceedings themselves. (The rules of many states, and Federal Rule of Criminal Procedure 6(e), do, however, permit witnesses before the grand jury to disclose their own testimony.) Moreover, most states also limit the scope of the rule to testimony and other information revealed during an actual grand jury proceeding, not to any "matter attending a grand jury." Of course, what other states do in terms of grand jury secrecy is not dispositive of the constitutional question, but it would shed light on the urgency of Arizona's interest in regulating this kind of speech.

As applied to the New Times, however, the question is closer. The newspaper was the target of the grand jury proceeding, and Lacey and Larkin gained access to the subpoena as part of those proceedings. But their situation is unique because they simultaneously have a role in the grand jury proceedings and a legitimate interest in reporting the news and making a truthful statement about a matter of great public concern. Moreover, applying the disclosure ban to them does not vindicate many of the traditionally recognized interests of the state in maintaining grand jury secrecy, such as encouraging witnesses to testify, protecting them after they do, and safeguarding the reputation of the of the un-indicted target. See Butterworth, 494 U.S. at 630. And one might argue that the Arizona statue, especially as applied to the recipient of an overly broad subpoena, tends to silence those who are in the best position to know of irregularities on the part of public officials. See id. at 636.


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