…as it should. Although there are legitimate reasons for claiming a right to privacy and its related torts in a case, in some instances the right to privacy is abused for political ends, as demonstrated by the controversy surrounding the Phoenix New Times.
This is a complicated case that actually builds on another one. The first case never actually went to trial—a special prosecutor, Wilenchik, was appointed to investigate the Phoenix New Times about the publication of a local sheriff’s home address (1). The Phoenix New Times had started investigating Sheriff Arpaio’s real-estate assets in 2004 and accused him of abusing a privacy law that allowed police officers to keep their addresses private (1). Sheriff Arpaio allegedly used the law to hide the true nature and value of his real-estate asset transactions. Offended at the Phoenix New Times’ publication of the sheriff’s home address, Wilenchik sought a subpoena from a grand jury demanding the Internet records of anyone who had visited the newspaper’s website (1).
Although this case never went to court because the County Attorney’s office eventually dropped all charges in relation to it, it nonetheless demonstrates the role of the First Amendment in preserving the media’s function as a watchdog. Freedom of the press protects the media from governmental censorship in the form of subsequent punishment. The media was serving as a watchdog in this case because it was exposing the morally questionable actions of a government official, the sheriff. The subsequent punishment the government, acting through the prosecutor, sought to impose was a subpoena of the newspaper’s records. The motivation to obtain this subpoena stems directly from the content of its publication, namely the home address of the sheriff. The subpoena itself constitutes subsequent punishment because it forces the newspaper to disclose the its private records, an action that would potentially damage the newspaper by implicating its readership through the guilty-by-association mentality. In other words, the special prosecutor’s motivation in obtaining the subpoena was to hinder the newspaper’s investigation of Sheriff Arpaio. “…the subpoena was part of an investigation orchestrated to get back at reporters and the critical stories they wrote about Arpaio, Thomas' political ally” (1). Thomas is the County Attorney, and his office oversees the special prosecutor.
This is a case in which freedom of the press would be considered more important than Arpaio’s right to privacy. Although Arpaio could have brought up the privacy tort of the public disclosure of private facts, his interest would have been overshadowed by the newsworthiness of the published information—that Arpaio, a trusted public official, was abusing the law. This parallels the court’s decision in Showler v. Harper’s Magazine Foundation, which disregarded Showler’s claim to the public disclosure of private facts in part due to the newsworthiness of the event—the funeral of the first Oklahoma National Guard member to be killed in Iraq, which even the governor of Ohio attended (2). As a reminder, this rationale is completely hypothetical because the case never got to court.
The most recent controversy surrounding the Arizona New Times, however, arises from the arrest of two of the newspaper’s executives, Larkin and Lacey, for the alleged disclosure of grand jury secrets (3). Larkin and Lacey had published the details of the subpoena, which included “information not only about the newspaper’s reporting, but also the information on readers who may have seen material deemed confidential published on the newspaper’s website, including the internet domain names and browsers used, and any other information about online readers of the publication since Jan. 1, 2004” (3). The irony here is that the newspaper is subpoenaed for the disclosure of private information because the newspaper itself disclosed private information about Sheriff Arpaio. Although Lacey and Larkin even acknowledged that disclosing grand jury secrets may have led to prosecution, they judged that the risk was worth it to keep the public informed about the details of the County Attorney office’s actions. Subsequently, public opinion and the State Bar Association sided with them that citizens have “the right to read whatever they want without government interference,” (1) thus pressuring the County Attorney to drop his charges. This case demonstrates the heightened importance of freedom of the press in acting as a checking function on government even though there may be security risks involved in leaking secret information. However, the paradoxical truth about the First Amendment is that it guarantees more safety and the triumph of Truth through the assumption of risk in letting all ideas be heard rather than suppressing information for temporary stability’s sake.
(2) (2) Helle, Steven. Journalism 199 Readings.