If you ever have visited the website of Phoenix New Times, your Internet browsing habits may soon be in the hands of Maricopa County Attorney Andrew Thomas. But not before one heck of a First Amendment fight.
Today's Arizona Republic reports that sheriff's deputies arrested New Times owners Michael Lacey and Jim Larkin, for the misdemeanor of revealing Grand Jury proceedings.
If true, thank goodness they did. For the subpoena they made public demands not only all New Times reporters' records relating to articles written about Sheriff Joe Arpaio, but identification of the Internet addresses, pages visited, and previous websites visited for everyone who has visited the New Times website since 2004. In this instance, the rule requiring confidentiality of Grand Jury proceedings was shielding from public view an outrageous abuse of government power-for which Lacey and Larkin were willing to pay the consequences to bring to light.
New Times is a generally liberal community newspaper with a penchant for investigative journalism. The publication has long criticized Arpaio and Thomas.
The subpoena reportedly is based on New Times' publication of Arpaio's home address, which allegedly is a crime. Whatever crime Thomas believes New Times or its principals or reporters have committed, the subpoena is breathtakingly broad-and in the view of some First Amendment experts, unprecedented in its scope.
When a publication is critical of elected officials-a crucial role for the press in a free society-prosecutors should tread very carefully so as not to chill vital First Amendment protections. It is difficult to conceive any wrong that could justify such a sweeping inquiry, not only into the files of New Times but into the Internet browsing habits of tens of thousands of innocent readers.
Michael Lacey and Jim Larkin proclaimed in their article revealing the contents of the subpoena, "We intend now to break the silence and resist." Apparently they have gone to jail for this courageous act of civil disobedience.
Regardless of one's ordinary proclivities regarding the players involved, there is only one place for friends of freedom to stand at this moment: shoulder to shoulder with the New Times.
Clint Bolick is the Director of the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation