Tuesday, February 24, 2009

Arizona censorship law may get more muzzling power

Several years ago, the Phoenix New Times, a spunky weekly newspaper in Arizona, published the home address of Maricopa County Sheriff Joe Arpaio in the course of an investigation into how the camera-loving "America's toughest sheriff" had managed to acquire such an impressive investment portfolio on the salary he drew from the county. Arpaio and an ally, Maricopa County Attorney Andrew Thomas, replied with a criminal inquiry against the newspaper for violating an obscure and constitutionally questionable law against publishing law-enforcement officers' personal information on the Internet. That law is now being revisited by legislators in a way that may make it even more restrictive.

The law in question currently says:

It is unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent.

It's a strange law, extending special protection to a particular class of people -- cops, judges, prosecutors and the like -- arguably without regard for the equal protection requirements of the Fourteenth Amendment. It also, of course, threatens freedom of speech and freedom of the press with prior restraint, content-based regulation of what can be published -- but only on the World Wide Web. The Phoenix New Times wasn't targeted for publicizing the location of Arpaio's plush abode in its pages, but for putting a copy of the article online. Why? Probably because such limitations are pretty clearly First Amendment violations when applied to the print media, but new media still exists in a bit of a legal limbo -- or, it did when the law was passed.

The Arizona law isn't alone; a Florida man faces charges for publishing a police officer's address online in that state. His lawyer is, not surprisingly, challenging the law as unconstitutional. Interestingly, violation of the Florida law is a misdemeanor, while Arizona makes it a class 5 felony.

But the Arizona law, as currently written, at least includes the caveat that publishing police officers' personal information online is illegal only if "the dissemination of the personal information poses an imminent and serious threat." Whether that's much of a limitation or not is anybody's guess -- interpretation is in the hands of the local officials who enjoy the benefits of the law. Your attorney can debate the meaning of "imminent" while you cool your heels (or warm them -- this is Arizona) in the lock-up.

Courtesy of Rep. Jerry Weiers, though, HR 2380, currently working its way through the legislature, would revise the law to remove the "imminent and serious" requirement and read as follows:

It is unlawful for a person to intentionally communicate or make available on the internet the personal information of an eligible person if the eligible person makes a written demand of the person to not communicate or make available the eligible person's personal information.

The new language defines "eligible person" as "a current or retired peace officer, justice, judge, commissioner, public defender or prosecutor." In place of the "imminent and serious" verbiage of the current law, the new language adds the requirement that an "eligible person" actively demand that his or her information remain off the Internet (but it can still be published on paper or broadcast over the air). That's more of a tool than a limitation, though, since it allows officials under investigation to fire off letters at will muzzling bloggers and the Web editions of newspapers.

As the Arizona Republic complains in an editorial, "All they have to do is write a demand letter, and - voila! - they control the media, which could face felony prosecution for failing to abide by their demands. There is no procedural mechanism by which a person could challenge such a letter."

I have good relations with the Republic, but the newspaper inexplicably seems to approve of the existing version of the law because it "protects undercover officers from imminent danger." I would never be so crass as to point out that the law has little impact on a primarily dead-tree operation like the Republic, while threatening smaller (and less lawyer-heavy) online operations.

Whoops! I guess I just did.

Weiers hasn't responded to my inquiries about his rationale for the new law, but my guess is that he hopes to shore up the legislation against challenges even while making it more of a bludgeon in public officials' hands. In the wake of a ham-handed arrest of two of its executives in the course of its wrangling with Arpaio, The Phoenix New Times is taking the sheriff to court for civil rights violations, and the muzzle law just might play a major role in the case.

The law should come up, and whatever version is in place when a judge finally examines the abusive piece of legislative excretia, it should be swept away as an unacceptable exercise of censorship.



Blogger MichaelK said...

OK, so can someone send me a list of ALL those addresses so I can publish them from outside Arizona? We'll see how effective that law is then. Wikileaks and the like should be useful for that.

February 24, 2009 12:08 PM  
Blogger Ned said...

"It's a strange law, extending special protection to a particular class of people -- cops, judges, prosecutors and the like"

That sounds like most laws actually. Enforcement is entirely dependent on your ties to the state. I shoot cop = life in prison, cop shoots me = commendation. I don't pay taxes = jail, congressman doesn't pay taxes = cabinet appointment.

Why don't some AZ bloggers just print up a bunch of police rosters and stick them on every telephone pole and public urinal in the state. Hell, pass them out like those Hollywood tourist "star maps" to everybody leaving county lockup. That should be fun.

February 24, 2009 6:35 PM  
Anonymous Terry said...

The proposed law also implicates Article 2, Section 13 of the State Constitution:

"13. Equal privileges and immunities

Section 13. No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations."

Various individuals and organizations have threatened to 'bludgeon' me with ARS 13-2401 on at least three occasions over the past six years.

One incident included an attempt to prohibit me from posting the depositions of several police officers in an ongoing civil rights lawsuit even though the depositions contained no 'personal information' as defined by statute.

Another incident included attempts to have me prosecuted for posting a videotape of my seizure at a Border Patrol checkpoint by federal agents who don't fall under the definition of an AZ Peace Officer.

As such, it's clear to me the language in the proposed changes to ARS 13-2401 will further undermine free speech, freedom of the press and the right of individuals to know what their public servants have been up to.

February 25, 2009 12:27 AM  
Anonymous Anonymous said...

One of the greatest articles I have read in awhile.

Including the people who wrote the previous comments


February 25, 2009 5:30 PM  

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