"This is not a close question," Judge Frank T. Galati said in rejecting a state request that New Times staff writer James Hibberd be forced to turn over a tape recording, notes and other material in connection with an interview in January of a man involved in the Phoenix Mountains Preserve arsons.
Galati said that Arizona's "press shield law," which has been on the books since at least 1937, grants journalists a special status. They can't be compelled to testify or disclose to police, or in court, information obtained from sources, including the identity of a source.
"It is not for the judicial branch to modify the plain language of a 64-year-old statute because the court may believe that something else better serves the public," Galati wrote in a six-page decision.
New Times published an exclusive interview with the Preserves arsonist on January 25. He described how he and three other people have torched homes under construction. The subject said the fires were set to protest encroachment on recreational areas. Nine burned homes near the Phoenix Preserves and two in Scottsdale have been linked to the arsonist group.
The interview came about after the arsonist read a story by Hibberd on environmental arson and called to speak to him. Hibberd was out of the office that day. The arsonist wrote him a letter saying that he'd called and had wanted to talk to Hibberd.
Rather than turn the letter over to police, as other media who had received letters have done, New Times published Hibberd's direct line on its January 18 cover and asked the arsonist to call. He did, and Hibberd talked to him for about 10 minutes to set up what would be a lengthy face-to-face interview two days later.
As a condition of the interview, the arsonist required that Hibberd not tape record the meeting at Patriots Square, and Hibberd has said he did not do so. However, Hibberd did tell police a few days after the interview that he had switched on a tape recorder in his office when the man first called him.
After the story was published, the Maricopa County Attorney's Office, acting on behalf of the state, issued subpoenas to Hibberd and New Times, seeking material authorities thought might help them identify the arsonist. They also wanted Hibberd and his editor, Carol Hanner, to appear before a grand jury.
At a February 22 hearing on a New Times motion to quash the subpoenas, assistant county attorney Paul McMurdie said arson investigators have identified suspects in the arsons. He said police wanted to try to match a voice print from Hibberd's tape with voice prints from suspects. Background noise on the tape might also be helpful, he said.
McMurdie argued that even under Arizona's shield law, information from a source who is also the perpetrator of a crime cannot be kept secret. He cited cases in other states in which courts have refused to extend protection when the source is the one committing the crime.
But Galati rejected the argument and noted that in those cases, journalists had actually witnessed crimes being committed because the sources had taken them along.
Galati said Hibberd would not be protected from revealing information about the arsonist if he had accompanied the arsonist to a fire, or if the arsonist had told him when and where a fire would take place and invited him to show up.
Although Galati emphasized that it's not his place to scrutinize New Times' decision to meet with the arsonist, he did chastise the newspaper for doing so.
New Times could have gone to the police, he noted. "Instead, it chose to give a public platform to a criminal, a criminal who remains on the loose and who remains a threat to the general public," Galati wrote.
("Of course," he noted in a footnote, "a free press in a free society properly exercises its prerogatives without regard to whether any official in any branch of government 'approves.'")
Phoenix attorney Dan Barr, a veteran media lawyer, pointed out that the press shield law is there to protect "unpopular things."
"The purpose of the shield law is to allow reporters to talk to people who are unpopular or arrested or retaliated against," he said. "It's not to allow reporters to go down and do the Joe Arpaio press conference or talk to Jerry Colangelo. Those people don't need protection."
Barr and Michael Meehan, the attorney who represented New Times in the case, both said Galati's ruling likely doesn't set any legal precedent. And arguing with authorities who want reporters to reveal sources or information is something they encounter frequently, they say.
"It may send a signal to prosecutors that the shield law is something to be treated very seriously and that [authorities] saying we should puncture it because the press talked to a bad guy . . . is not going to work," Barr said.
Meehan said the judge was right to reject what Meehan called "a new idea" by the county attorney -- that a criminal or perpetrator of a crime can't be a protected source.
"It's obviously gratifying that the judge followed the legislative decision and recognized the importance of getting stories from sources," he said. "We thought that was kind of obvious and the judge did, too."
Bill FitzGerald, a spokesman for County Attorney Rick Romley, said Tuesday his office has not yet decided whether to appeal Galati's decision.
For complete New Times coverage of the Preserves Arsonist, click over to our Arsonist Archives.