In a clear attack on the first amendment, the editors of an Alternative Newspaper have been arrested on charges of violating Grand Jury secrecy. The Village Voice Media ran a story about grand jury subpoenas they received seeking reporters’ notes and information on who visits their Phoenix weekly’s Web site. Michael Lacey, executive editor of Village Voice Media, and Jim Larkin, CEO of the Phoenix-based chain, were arrested at their homes Thursday, the same day their story was published in the Phoenix New Times.
Their story was appropriately entitled “Breathtaking Abuse of the Constitution,” where they revealed that authorities want every story New Times has written about Sheriff Joe Arpaio since Jan. 1, 2004, and all the notes, tapes and records of the reporters.
The subpoenas also seek online profiles of anyone who read four specific articles about Arpaio and profiles of anyone who visited the paper’s Web site since Jan. 1, 2004. Also sought was information on what Web users did while on the site, the story said.
For full disclosure, I am counsel to the Rocky Flats Grand Jury in the ongoing litigation over the scope of Rule 6(e), the federal grand jury rule. For a column on the case, click here
The Arizona subpoena itself was an outrage and something that should lead to sanctions for the responsible authorities. Moreover, in the federal system, it is not a violation of Rule 6(e) to reveal the receipt of a subpoena. The suggestion that this violates Arizona law raises some very serious constitutional questions in my view. The power of the press is to inform the public of abuse. They should not be required to remain silent when threatened by unhinged state officers seeking clearly confidential material. For the full story, click here
Our view of the Arizona grand jury secrecy statute should be informed by a 1990 U.S. Supreme Court Decision, Butterworth v. Smith, which voided state laws that bar a witness from speaking about their own appearance before a grand jury. See The New York Times, March 22, 1990: “High Court’s Ruling Limits Law on Grand Jury Secrecy,” by Linda Greenhouse.
I expect that this bar on disclosure has never been challenged. It is a perfectly horrible interpretation of grand jury secrecy. The grand jury was orignially designed to protect against government abuse, not to foster such abuse behind the curtain of secrecy.