By: Randy Dotinga

Judge Says Prosecutors Won’t Get Reporter’s Notes

An Arizona judge said Tuesday that the Phoenix New Times doesn’t have to
give up notes, e-mails, and tape recordings to a prosecutor who’s trying to
track down an arsonist. Superior Court Judge Frank Galati ruled that Arizona’s
tough shield law protects the newspaper from having to give up any materials.

Galati made it clear, however, that he doesn’t necessarily support the
newspaper’s decision to not contact police when a purported arsonist came
calling. “Making that choice violated no laws, but this court strongly suspects
that to the average citizen, it appears that New Times placed its own
self-interest far above the safety of the public it claims to serve,” he wrote.
In a footnote, he added a caveat that “a free press in a free society properly
exercises its prerogatives without regard to whether any official in any branch
of government ‘approves.'”

On Jan. 24, the New Times printed a 90-inch story about a man who claimed
to be part of a gang that is torching newly built mansions near a wilderness
preserve. The man, who did not identify himself, had earlier contacted the
New Times and agreed to an interview in a public park.

Talk-show hosts and newspaper letter writers roasted the New Times, Phoenix’s main alternative weekly, after the story was published. Hibberd agreed to talk with arson investigators and provide a small amount of information that wasn’t published, but the newspaper balked when county attorney Richard Romley went after it with a grand-jury subpoena. Among other things, the subpoena demanded Hibberd’s notes, e-mails, tape
recordings, and correspondence. Hibberd taped a telephone conversation in which his interview with the man was arranged. A later subpoena asked for copies of communications between Hibberd and his boss, Managing Editor Carol Hanner.

In court papers, prosecutors argued that Hibberd and the newspaper had waived
their right to protect the arsonist’s identity by granting interviews and
talking about the story publicly. Prosecutors also said the shield law –
which forbids compelling a reporter to give up a source – shouldn’t protect
an at-large criminal. Judge Galati rejected those arguments. He wrote that the
extent of the shield law’s protections “is a matter…to be decided by the
legislature, not by this or any other Arizona court.”

A spokesman for county attorney Romley declined to comment on the ruling but did
say a decision about an appeal should come soon. Michael Meehan, attorney for
the New Times, was pleased with the ruling and said it left no openings
for a successful challenge. “We think the judge’s ruling was correct,” he said.
“If it’s appealed, we expect a court of appeals to agree with us.”

If the case does go to the Arizona Supreme Court, the outlook may still be good,
Meehan said. According to him, the Supreme Court has generally been supportive
of free press rights.

Randy Dotinga ( is a free-lance writer based in San Diego.

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