Maricopa County v. Phoenix New Times [1]

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 [2] 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 [3] 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 [4] 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.