The U.S. Court of Appeals for the Ninth Circuit will hear arguments tomorrow in a lawsuit filed against Arizona law-enforcement officials who falsely arrested two Village Voice Media executives as retaliation for stories printed in the Phoenix New Times in 2007.
An en banc panel of 11 judges of the appellate court will hear the case, which is being reconsidered after a three-judge panel rejected portions of the suit 2-1 in June. At the time, dissenting Judge Jay Bybee called the actions of Maricopa County police and prosecutors "a sordid tale of abuse of public office." In November, the appeals court agreed to rehear the case.
VVM Executive Editor Michael Lacey and CEO Jim Larkin, along with the Phoenix New Times, filed the suit following an unusual series of events that unfolded between 2004 and 2007. (Disclosure: VVM owns SF Weekly as well as the New Times.)
Maricopa County Sheriff Joe Arpaio, the self-styled "America's Toughest Sheriff" whose inhumane jails and persecution of Mexican immigrants have spurred widespread criticism in the press and among human-rights groups, became livid after the New Times published his home address in a story on his real-estate dealings in 2004. (Among Arpaio's more recent exploits has been the formation of a bizarre "posse" to investigate the circumstances of President Obama's birth.)
The address was already available online through sources including the Maricopa County Recorder's office and the website of the local Republican Party. However, Arpaio urged county prosecutors to file charges against Lacey and Larkin for violating an obscure, never-before-used state law making it illegal to publish personal information about cops online.
Two elected county attorneys declined to file charges, but Arpaio eventually convinced Maricopa County Attorney Andrew Thomas, a political ally, to appoint a "special prosecutor" to go after the New Times. The prosecutor, Dennis Wilenchik, was a former law partner of Thomas'. Without convening a grand jury, he issued illegal subpoenas to the newspaper demanding information about readers who visited its website.
Lacey and Larkin responded by publishing the contents of the subpoena. For their trouble, they both got late-night visits from Maricopa County Sheriff's deputies in unmarked cars, and Lacey spent the night in county lockup. As David Carr, media columnist for the New York Times, later observed:
Reporters around the world work under state-imposed limits on information, and there are even places where police show up in the dead of night and spirit them away to jail for having the temerity to commit journalism. It is a grim tableau repeated too often all over the world: it happens in Iran, it happens in China, it happens in Zimbabwe. And last fall, it happened in Phoenix.