Maricopa County's racial-profiling ex-sheriff Joe Arpaio just lost his latest comeback bid; his 2007 arrest of two newspapermen foreshadowed the First Amendment battles of Trump's America.
In the early morning hours of October 19, 2007, Michael Lacey, then-executive editor of the Village Voice Media chain of alternative newsweeklies, stood outside Maricopa County’s Fourth Avenue Jail, addressing a scrum of reporters as he hitched his belt through its loops.
Lacey had just emerged from inside the bleak steel-and-red brick building in downtown Phoenix, having been arrested late the night before by plainclothes detectives in the employ of Sheriff Joe Arpaio on one misdemeanor count of violating grand jury secrecy.
“We’re being arrested for raising hell,” Lacey told the assembled. “It’s sort of a tradition journalism has.”
Plainclothes deputies had also slapped cuffs on Jim Larkin, VVM’s chairman/CEO, at Larkin’s home in Paradise Valley, shoving him into an unmarked car with Mexican plates. They took him on a drive to a sheriff’s substation in Mesa, Arizona, and then on to Fourth Avenue, where he was placed in a holding tank and lectured by a sergeant before being released.
For a while, Larkin’s whereabouts were unknown to family and friends. Both he and Lacey had anticipated the arrests as a result of the double-bylined cover story they had published on October 18, “Breathtaking Abuse of the Constitution,” in which they detailed secret grand jury subpoenas issued by a special prosecutor working for then-Maricopa County Attorney Andrew Thomas, Arpaio’s political ally and cat’s paw.
As the title suggested, the subpoenas were, in fact, gross violations of the First Amendment rights of Lacey and Larkin, the Phoenix New Times (PNT) — the alt-weekly they co-founded in 1970 — and the paper’s readers. The subpoenas demanded the IP addresses of all visitors to PNT’s website over a span of two and a-half years, as well as the reading habits and profiles of those readers.
Additionally, the subpoenas sought reporters’ notes and other materials related to stories about Arpaio.
“Those subpoenas are what you should be writing about,” Lacey explained. “The sources they want from us on all of these stories . . . The fact that they want to have the identity, the browsing habits, the buying habits, what shopping carts people have filled, what sites people have visited on the Web before they came to us, what sites they visited after they left us. The fact that they have subpoenaed that kind of information . . . is what the story’s about. It’s not about me getting out of jail at four in the morning.”
Arpaio had sought revenge for years of PNT’s exposés on the corruption and brutality of his regime. The subpoenas were tools to that end, but Lacey and Larkin had tossed a Molotov cocktail into the proceedings with their front page story. And Arpaio’s minions overreacted.
Their retreat would be swift. Within 24 hours, Thomas — who in 2012 would be disbarred for various abuses of power — was being pilloried by outlets and organizations as diverse and far flung as Slate, The New York Times, the ACLU and the Goldwater Institute. At a press conference the day after the arrests, the far-right County Attorney ate a heaping pile of crow, fired his special prosecutor and chucked the case against Lacey and Larkin.
The First Amendment had triumphed, for the moment, because two pugnacious newspapermen stood up against a frightening combination of police and prosecutorial power, one that would for several years wreak havoc on county government.
Eventually, Thomas would fall by the wayside, but Arpaio, the senior Republican Sith Lord in the partnership, survived, until he was crushed in 2016 by Democratic challenger Paul Penzone.
Now that Arpaio has been defeated yet again in an attempted comeback at age 88 in the 2020 Republican primary for Maricopa County Sheriff by his former flunky Jerry Sheridan, it’s worth recalling Arpaio’s infamous, 2007 assault on the First Amendment.
‘We criticized the Sheriff’s conduct and he attacked us, dragged us out of our homes in the middle of the night, putting us in unmarked cars. Took us to prison.’ — Michael Lacey, co-founder of the Phoenix New Times
The men who beat back that assault are engaged in yet another First Amendment donnybrook, this time with the federal government. Their struggles, past and present, dovetail with the current fight for freedom of speech raging in Trump’s America from Portland, Ore. to Atlanta, Georgia, from Minneapolis, Minn. to Buffalo, New York, and beyond.
The Fire This Time
With anonymous federal officials dressed in military-style camouflage, snatching protesters off the streets of Portland, and journalists being arrested, assaulted and tear-gassed by state and federal cops across the country, the parallels between what’s going on now and those 2007 arrests of Lacey and Larkin are striking.
In a recent email to Front Page Confidential, which he and Larkin founded in 2017 to report on all issues related to free speech and the First Amendment, Lacey concurred with this assessment.
“From my perspective, this is precisely like Sheriff Joe Arpaio’s retaliatory arrest of me and Larkin,” Lacey explained, referring to the police response to demonstrators protesting the killing of George Floyd by Minneapolis cops.
“We criticized the Sheriff’s conduct and he attacked us, dragged us out of our homes in the middle of the night, putting us in unmarked cars. Took us to prison.”
The two men sued Maricopa County for false arrest, and in 2013, the county settled for $3.75 million. They used the money to create the Lacey and Larkin Frontera Fund, a non-profit endeavor that distributed the money to deserving migrant-rights organizations in Arizona.
“They paid us $4 million, which we gave away to Mexican activists,” Lacey said. “Money wasn’t the point then; it isn’t the point now.”
Born from student anger over the Vietnam War and the Kent State massacre, PNT had an adversarial relationship with law enforcement from jump. Lacey wrote for the paper as well as edited it, and over the course of four decades, he often investigated police shootings and scandals involving the county attorney and the chief of police, whoever that was at the time.
‘It is, we fear, the authorities’ belief that what you are about to read here is against the law to publish. But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.’ — from the 2007 cover story, ‘Breathtaking Abuse of the Constitution’
From 1980 to 1991, Ruben Ortega was Phoenix’s police chief, and Ortega did his damnedest to jack both men up over PNT’s critical coverage of the chief’s mean-spirited, autocratic regime.
Of particular note was Lacey’s reporting on the 1984 shooting of Standley Wesley, an unarmed African-American teenager, by a Phoenix police detective. Wesley had his hands up, according to witnesses, when the detective, with a cocked gun in his hand, began to frisk the 18-year-old, shooting him accidentally in the back, paralyzing the young man.
The city’s black community was incensed. In a televised press conference, Ortega denied Wesley had been shot in the back, pulling back his suit coat to point to a spot on his abdomen where he claimed the bullet entered Wesley’s body.
Lacey visited Wesley in the hospital for himself, photographing the bullet’s entry wound on Wesley’s back, not his side or his front. Ortega would later say the bullet’s entry point didn’t matter. But Ortega’s enmity for Lacey and PNT was cemented with that story.
According to Lacey, Ortega had him tailed, and cops lit him up after Lacey and Larkin left a local dive bar. Lacey was arrested and hit with a DUI charge that was later dismissed.
But it would later be revealed that Ortega’s vendetta persisted beyond this failed frame-up. In 1993, two years after Ortega left Phoenix for a gig in Salt Lake City, New Times reporter David Pasztor described in an investigative feature how Ortega’s tenure was “one of the `scariest’ periods in Phoenix’s history,” when “criticizing the chief was an invitation to be investigated.”
None other than Ralph Milstead, the former head of the Arizona Department of Public Safety, and father of recently retired DPS honcho Frank Milstead, told Pasztor that in 1987 or ’88, Ortega had asked Milstead to have DPS investigate Lacey for cocaine smuggling.
Despite lacking any legal reason to do so, Milstead, Ortega’s erstwhile partner in the Phoenix police force, obliged. Plainclothes DPS officers shadowed Lacey on flights to New Times’ newly-acquired paper in Miami. Investigators “worked up a financial profile” on Lacey to try to show that he had income from dubious sources.
But nothing came of it, because, of course, Lacey was a newspaper editor, not a drug dealer.
Ortega retired from the Phoenix PD in 1991. But as Aristotle said, nature abhors a vacuum. And like clockwork, in 1992, a former special agent with the U.S. Drug Enforcement Bureau, ran for sheriff in Maricopa County as a reform candidate and won.
His name: Joe Arpaio
While it is tempting to paint Arpaio as a pathetic, attention-addled “media whore,” as his one-time flack Lisa Allen called him years ago, he is, in fact, more Pinochet than Pagliaccio — an authoritarian strongman elevated through the popular vote for 24 years by appealing to the worst in the electorate, using cruelty, racism and crude bread-and-circuses.
From Arpaio’s election to sheriff in 1992 to his downfall in 2016 and beyond, the Phoenix New Times, more than any other publication, dogged his every miserable step, documenting the sad procession of cadavers exiting his jails or his signature open-air gulag, Tent City, each murdered by torture, spite, indifference or a combination of all three.
PNT investigated them all: the sadistic restraint chair deaths of Scott Norberg and Charles Agster, the denial of medical care that caused the horrific demise of Deborah Braillard, the brutal jailhouse beat-down of mentally-ill veteran Marty Atencio, and on and on.
The paper also covered Arpaio’s seemingly endless scandals, his retaliation against his political enemies and his eventual mutation into an anti-immigrant stalwart, who transformed the Maricopa County Sheriff’s Office into a mini-version of U.S. Immigration and Customs Enforcement, with law-enforcement sweeps of communities of color, on the hunt for undocumented immigrants.
An ACLU lawsuit, Melendres v. Arpaio, would eventually block those sweeps, with U.S. District Court Judge G. Murray Snow finding Arpaio’s office guilty of widespread racial profiling and appointing a monitor to oversee a series of institutional reforms.
But Arpaio and his henchmen, most notably his then-Chief Deputy Jerry Sheridan, defied the judge. And in May 2016, Snow ruled that Arpaio and his subordinates had “deliberately violated court orders” and made “multiple intentional misstatements of fact while under oath,” finding both men guilty of civil contempt and referring the matter to another judge and the U.S. Attorney’s Office for possible criminal charges.
Sheridan escaped criminal liability as the statute of limitations had already run out in his case. But Arpaio ended up being convicted of criminal contempt. As readers now know, President Trump, whom Arpaio had endorsed early in Trump’s underdog campaign to inhabit the White House, pardoned Arpaio in August 2017.
By that time, Maricopa County voters had given Joe his walking papers, owing, in large part to the cost of implementing the judge’s decree in Melendres, which had to be paid out of the county’s general fund and passed on to the taxpayers in the form of higher property taxes.
(Note: By the end of Fiscal Year 2021, the county estimates Melendres‘ price tag will have grown to a whopping $134 million, and counting.)
Which is why former Phoenix Police Sergeant and Democrat Paul Penzone clobbered Arpaio in 2016, garnering 56 percent of ballots cast versus Arpaio’s 44 percent. Arpaio also made a half-assed run for U.S. Senate in 2018, coming in third.
Thus, his loss to Sheridan makes him a three-time loser.
In 2007, the arrests of Lacey and Larkin were a distant prologue to Arpaio’s downfall. At the time, Arpaio was nearing the zenith of his powers in a toxic alliance with County Attorney Thomas. With then-Chief Deputy David Hendershott acting as Arpaio’s rotund reincarnation of Napoleon’s secret police chief Joseph Fouché, the Arpaio-Thomas junta would go on to menace county employees, mayors, county supervisors, police chiefs, judges and even Arizona’s Attorney General at the time, Terry Goddard.
‘The police need to be re-educated. Somebody’s momma needs to slap them up the head. What are they doing with tanks and other military hardware? Who are they going to war with?’
But the Phoenix New Times did not lie down. Indeed, Arpaio was a target of the paper’s journalism from his first day in office.
“We were a constant thorn in his side,” Larkin told me for a piece I wrote for New Times about Arpaio’s pardon in 2017. “I think that’s why Michael and I got arrested.”
Arpaio especially didn’t like the fact that PNT’s star reporter John Dougherty was on him like white on rice. In 2004, Dougherty looked into $1 million worth of property that Arpaio had somehow acquired on a civil servant’s salary, discovering that Arpaio had redacted all identifying information on many of the parcels in question.
One address was left un-redacted, though: Arpaio’s home address in Fountain Hills. In an opinion piece about these shenanigans, Dougherty included the address to make a point about what Arpaio was hiding.
Unbeknownst to Dougherty or his editor, they had run afoul of an obscure, never-prosecuted statute passed by the Arizona legislature in 1999 that made it a misdemeanor to publish a law enforcement official’s home address online.
Legally, you could put Arpaio’s address on the front page of a newspaper, as PNT did when it learned of the effort to railroad Dougherty. But you couldn’t publish it online. Ironically, Arpaio’s address was available on websites for various government agencies.
Arpaio finally had a path to payback, and he pursued it for nearly three years, trying to gin up a criminal case against Dougherty and the New Times. Thomas’ office rejected it at first. But relentless pressure from Arpaio forced Thomas to appoint a special prosecutor, Phoenix attorney Dennis Wilenchik, to go after PNT.
Wilenchik had the subpoenas issued (improperly, a judge would later rule), and he sought millions in sanctions from PNT. But when the presiding judge revealed that Wilenchik had attempted to arrange a meeting with her through an intermediary, Lacey and Larkin figured the proverbial jig was up and decided to act.
“It is, we fear, the authorities’ belief that what you are about to read here is against the law to publish,” they wrote in the October 2017 cover story that got them pinched. “But there are moments when civil disobedience is merely the last option. We pray that our judgment is free of arrogance.”
Grand jury secrecy is largely intended to protect the subjects of a probe, in this case Lacey and Larkin. Revealing grand jury secrets is a misdemeanor, not something that normally gets one collared by armed goons in the middle of the night.
However, as illustrated above, Arpaio’s stab at retaliation backfired, badly.
In 2008, the ACLU of Arizona awarded both men their highest honor, Civil Libertarian of the Year.
During the ceremony, Larkin called Arpaio “a thug with guns whom we have seen [variations] of many times in the past 38 years of our publishing experience.”
He added that Arpaio was “a bully, pure and simple…and at Village Voice Media we are prepared, as all of us should be tonight, to resist him.”
War All the Time
Lacey and Larkin sold Village Voice Media, of which PNT was a part, in 2012 to company executives.
But their First Amendment fight against prosecutorial overreach and law enforcement excess continues to this day, largely over their former ownership of the online classifieds giant, Backpage.com, which they founded in 2004 as a competitor to Craigslist.org.
As with Craigslist, Backpage was an electronic bulletin board, where users posted listings for all kinds of products and services: car sales, apartments for rent, puppy giveaways, jobs wanted, etc. Users could also post legal adult ads for escort services, striptease, phone sex, fetishes, and so on.
Over the years, grandstanding politicians, insincere activists and state attorneys general made Backpage their whipping boy, attempting to hold it responsible for the alleged illicit acts of others who posted ads to the site’s adult category.
Lacey and Larkin repeatedly and successfully fought off these attempts in state and federal courts, citing both the First Amendment and Section 230 of the Communications Decency Act, which generally holds interactive websites and platforms harmless for so-called user-generated content.
Despite cooperating with law enforcement agencies to help track down, arrest and prosecute pimps and child sex traffickers, Backpage became the focus of certain bad actors, such as wannabe VP nominee and U.S. Senator Kamala Harris, who in 2016, while still California Attorney General, brought bogus pimping charges against both men, arresting them and displaying them in a cage in state court in Sacramento.
Needless to say, Lacey and Larkin are not pimps. They’re veteran newsmen and businessmen who owned a classified listings site, one they sold in 2015. As a result, Harris’ absurd pimping charges were tossed by state judges, not once, but twice.
Urged on in part by the late U.S. Senator John McCain and his wife Cindy, both of whom had been the subjects of New Times investigations, the U.S. Department of Justice turned the might of the federal government on Lacey and Larkin.
On April 6, 2018, the FBI arrested both men, raiding their homes with guns drawn and confiscating their property with the sort of shock and awe normally reserved for the likes of “El Chapo” Guzman. The same day, the feds seized and shut down Backpage in an egregious act of direct government censorship.
Ultimately, Lacey and Larkin would be charged with 100 counts of money laundering, conspiracy and facilitating prostitution under the U.S. Travel Act, based on a perverse theory of vicarious liability. Both men were held for more than a week before they were finally released on bonds of $1 million each.
In an effort to make them kneel, the feds seized all of their assets, including funds set aside for their attorneys and money made from their newspapers, using warrants issued by magistrates in California. Currently, those seizures are the subject of a case before the Ninth Circuit Court of Appeals.
Lacey and Larkin’s trial, and that of their four co-defendants, is scheduled to begin January 12, 2021.
As a requirement of their release, both men wear GPS ankle monitors that track their every move, and they must get permission from a federal parole officer before leaving the borders of Maricopa County.
Lacey and Larkin maintain their innocence, and they are determined to prevail. In some ways, their latest fight against the feds is par for the course, when it comes to how they’ve lived their lives.
Meanwhile, Lacey has taken great interest in the anti-police brutality demonstrations that have lit up streets all over the U.S. He’s attended the marches in downtown Phoenix, and has been writing about developments in the movement to reform, defund or even abolish the police.
“De-funding the cops is a distraction,” Lacey opines in an email. “Now we have protesters, upset about the death of George Floyd and the murder of Breonna Taylor, and those videos [online] show cops slapping the piss out of demonstrators.”
He continues, adding that the police “need to be re-educated” to fulfill their role of protecting the public.
“Somebody’s momma needs to slap them up the head,” he writes. “What are they doing with tanks and other military hardware? Who are they going to war with?
“They don’t know how to make the peace, let alone keep the peace,” he concludes. “Let them learn through tranquility.”
If only that were possible . . .