Just days after the House of Representatives passed the Free Flow of Information Act, The New York Times reports that two executives from Village Voice Media were arrested in Phoenix, Arizona, for revealing "grand jury secrets".
Michael Lacey, the executive editor, and Jim Larkin, chief executive, were arrested at their homes after they wrote a story that revealed that the Village Voice Media company, its executives, its reporters and even the names of the readers of its website had been subpoenaed by a special prosecutor. The special prosecutor had been appointed to look into allegations that the newspaper had violated the law in publishing the home address of Maricopa Sheriff Joe Arpaio on its website more than three years ago.The two have since been released, but the reverberations of this blatant assault on the press and of Arpaio's retaliatory behavior will likely resonate for some time. Although the original investigation stems from a column written by John Dougherty about Arpaio's real estate investments, the impetus for yesterday's arrest appears to be this week's Phoenix New Times cover story, "Breathtaking Abuse of the Constitution". In the article, Lacey and Larkin acknowledge the fact that the story may generate a legal backlash, and imply that civil disobedience had become their last option. The article is extensive and provides the context necessary to understand the ongoing dispute, but it also details the unbelievably broad scope of the subpoena the paper received, and perhaps the publication of this frightening piece of information is what led to the jailing of the two executives. Not only did the subpoena demand "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times Web site, regarding Sheriff Joe Arpaio from January 1, 2004, to the present," which includes all the notes and recordings produced by the staff, but the subpoena also ordered that New Times provide personal information about visitors to the paper's Web site.
The subpoena demands: "Any and all documents containing a compilation of aggregate information about the Phoenix New Times Web site created or prepared from January 1, 2004 to the present, including but not limited to: A) which pages visitors access or visit on the Phoenix New Times website; B) the total number of visitors to the Phoenix New Times website; C) 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.); D) the Internet Protocol address of anyone that accesses the Phoenix New Times website from January 1, 2004 to the present; E) the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present; F) the website a user visited prior to coming to the Phoenix New Times website; G) the date and time of a visit by a user to the Phoenix New Times website; H) the type of browser used by each visitor (Internet Explorer, Mozilla, Netscape Navigator, Firefox, etc.) to the Phoenix New Times website; and I) the type of operating system used by each visitor to the Phoenix New Times website." Special prosecutor Wilenchik wants this information on each and every New Times reader online since 2004.The state of Arizona has a shield law that protects journalists and news agencies from having to comply with certain subpoenas. These protections may not apply in this case, however; since the government contends that Phoenix New Times broke the law when Dougherty published the sheriff's home address online, the paper is left vulnerable. Shield laws are not written to protect the accused from complying with orders to disclose privileged information. Ironically, the print edition of Dougherty's column does not fall under the law; it only applies to content on the Web. It is legal to publish an officer's address in a newspaper, broadcast it on radio and television, or even, as Lacey and Larkin point out, on a billboard. In addition, Dougherty was able to locate Arpaio's address on other Web sites including those maintained by the County Recorder and the Elections Department. The fact that the Maricopa County government has subpoenaed Village Voice Media under this rather specious law is alarming. The reality that the government is seeking information pertaining to visitors to the paper's Web site is absolutely frightening, and the unfortunate imprisonment of the two executives of Phoenix New Times is totally obscene. It's still unclear how everything will resolve, but two people have already spent time in custody for upholding the public's right to know and the subpoenas are still being fought in court. The First Amendment was written to prevent this and other similar situations, but it is a universal truth that those in power will do everything they can to maintain their status and the Constitution will continue to be attacked as these agents of influence fight to hold onto that power. While the passage of a federal shield law may be a small victory, the story of Michael Lacey and Jim Larkin is a reminder that the war on the press and the public's right to know will continue indefinitely. It is our duty, both as journalists and members of the public, to stand up to government power and to speak out against the barrage of assaults that continue to threaten our civil liberties.