An overreaching Arizona prosecutor jails a pair of newsmen.

Media criticism.
Oct. 19 2007 5:53 PM

The Subpoena Weenie

An overreaching Arizona prosecutor jails a pair of newsmen.

New Times founders Jim Larkin and Michael Lacey. Click image to expand.
New Times founders Jim Larkin (left) and Michael Lacey (right)

An Arizona grand jury wants information about me. Not just a little, but a lot.

Because I have visited the PhoenixNew Times Web site, the grand jury wants to know the IP address of my computer. It wants to know what type of browser and operating system I use. It wants to know what Web pages I visited before going to Phoenix New Times and the Web pages I visited after going there. It wants to know the date and time of my visits.

The grand jury also wants the information contained in the cookie that Phoenix New Times places on my hard disk when I visit the site—this cookie contains a host of data about my Web browsing. Because it's usually a simple matter to deduce the name of a home Web user by his IP address, anybody who gathers all of this data will be able to assemble a many-faceted—and intrusive—portrait of me.

But I'm not the only person in whom the grand jury, convened in Maricopa County (of which Phoenix is the county seat), has interest. It wants this data about everybody who has browsed the New Times site since Jan. 1, 2004.

The reason I know so much about the grand jury's demands—which are supposed to be secret—is because of the cover story Jim Larkin and Michael Lacey wrote this week for New Times, in which they disclose the grand jury subpoena the newspaper recently received.

Larkin and Lacey aren't just a couple of New Times staff writers. They're the two top executives of Village Voice Media, the alt-weekly chain that owns New Times. They're also my former bosses. I worked for them in 1995 and 1996 as editor of SF Weekly. And they're friends.

The subpoena informs its recipients in bold, all-capital letters that "DISCLOSURE OF ANY MATTER ATTENDING A GRAND JURY PROCEEDING, INCLUDING DISCLOSURE OF YOUR RECEIPT OF OR COMPLIANCE WITH THIS SUBPOENA, IS A CRIME." In publishing the subpoena, Larkin and Lacey dared the county to do something about it, and the county immediately obliged. Maricopa County sheriff's deputies came to their homes last night, arrested them, and threw them in jail.

I wish I could report that Larkin and Lacey were still in jail or bound for the Supermax prison in Florence, Colo. A pair more in need of correction you'll never meet. Alas, both were sprung after a few hours in stir.

What interests the grand jury in New Times readers? Here's the short form: Over the past 14 years, New Times has investigated Maricopa County Sheriff Joe Arpaio in colonoscopic detail. The landing page for New Times' collected works on Sheriff Joe (as he's known) accuses him of "serious abuses of power."

The page continues, "During his tenure, inmates have died needlessly in his jails, and his office has engaged in reckless police operations and Gestapo-like activities against rivals. In Arpaio's world, such callous disregard for human rights only enhances his reputation as the 'toughest sheriff in America.' "

New Times is hardly the only Arpaio critic. See this Amnesty International condemnation of the treatment of inmates in Maricopa County jails.

The subpoena that Larkin and Lacey are waving like a Fourth of July flag grows out of a trumped-up criminal investigation of New Times for publishing Sheriff Joe's home address three years ago on its Web site as part of its investigation of his real estate deals (see "Sheriff Joe's Real Estate Game," by John Dougherty, July 1, 2004). Arpaio and the county prosecutor, whom New Times admires in the same manner it does Arpaio, say its publication violates state law, hence the grand jury investigation. Like a colossal fishing trawler, the subpoena also demands all notes, records, documents, e-mails, files, etc. related to several New Times articles about Arpaio.

How difficult is it to find Arpaio's home address? It took me five minutes of Web plinking, and I didn't need New Times to find it.

Not since Br'er Rabbit conned Br'er Fox into tossing him into the briar patch has a trickster been as happy as Larkin and Lacey are today. Prior to the arrest, the dispute was local. Today, Larkin and Lacey are national First Amendment martyrs, and the silly law they violated is about to be punctured by the free-speech lobby and every columnist with a keyboard. The law prohibits publication of home addresses on the Web only, not in print or via broadcast. At this late date, it's hard to imagine an appeals court denying Web journalism (is there any other kind?) parity with print and broadcast journalism. That law will soon be history.

The publicity raised by the arrests will bring new national scrutiny and ridicule to Arpaio. Also under the national magnifying glass will be the special prosecutor, whom New Times accuses of misconduct in a lawsuit. (Here's the early local coverage of the story from the Arizona Republic and the East Valley Tribune and the national take from the New York Times, USA Today, and Editor & Publisher.)

Lacey promises his usual unyielding, principled stand against the transgressions of the corrupt and powerful.

"It's going to take them forever to get that information about our readers," Lacey said to me in a phone call. "But your stuff I gave them immediately."

Addendum, Oct. 20: Dang, the First Amendment battle has been averted! Maricopa County Attorney Andrew Thomas has dropped charges against Larkin and Lacey and has recommended that special prosecutor Dennis Wilenchik be removed from his position. But the story doesn't end there. The Arizona Republicreports that "Wilenchik and Thomas are now the subjects of legal and ethical complaints with the State Bar of Arizona.

******

Never pick a fight with people who buy their whiskey by the truckload, their ink by the tanker, and their pixels at wholesale. Send subpoenas to slate.pressbox@gmail.com. (E-mail may be quoted by name in "The Fray," Slate's readers' forum, in a future article, or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)

Jack Shafer was Slate's editor at large. You can follow him on Twitter or email him at Shafer.Reuters@gmail.com.

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