Forbids Newspaper from Reporting on Crime, Seizes Cellphones from School Board Members and Publisher
Much digital ink has been spilled about the arrest of a small-town publisher and reporter in Atmore, Alabama, for reporting on a grand jury leak about the alleged mishandling of COVID relief funds in the local school district. But events surrounding the arrests of these two journalists should be of even greater concern to First Amendment advocates.
While Alabama law makes it a crime for grand jurors, witnesses, and others directly involved in a grand jury proceeding to disclose information from these secret hearings, this prohibition does not include journalists. Moreover, a long line of U.S. Supreme Court precedents, harking back to the Pentagon Papers, make it clear that journalists can report leaks, even when the leak is illegal. This is judged necessary for freedom of the press. Time and again, such reporting has broken loose the logjam of secrecy, incompetence, and inside-dealing that often hardens inside powerful institutions.
But the plain facts and the law did not stop Escambia County District Attorney Stephen Billy from charging Atmore News publisher Sherry Digmon and reporter Don Fletcher with a felony charge of reporting grand jury information, carrying a penalty of between one to three years imprisonment and a fine of $5,000.
Worse, from a constitutional perspective, are bail terms that prohibit the journalists from reporting on “ongoing criminal investigations.” In this one brilliant move, District Attorney Billy ventured from criminalizing reporting into the worst offense against free speech – prior restraint.
“The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place,” said Seth Stern, director of advocacy at the Freedom of the Press Foundation. “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”
The Atmore News today posts a straightforward, factual account of the arrests of its publisher and reporter. Could that be construed by the district attorney as a bail violation? It is not clear. And when legal standards are not clear, the free practice of journalism suffers.
In a separate action, District Attorney Billy dispatched sheriff’s deputies with search warrants to seize the cellphones of four members of the Escambia County Board of Education who voted not to renew the contract of the local school superintendent. One of the board members was publisher Sherry Digmon. The stated purpose of the raid was to investigate a possible telephone violation of Alabama’s Open Meetings Law by the four board members, even though violations are a civil matter under Alabama law. It is not a crime.
It would be easy to dismiss this case as an outlier by a bumbling local district attorney. As the Dude says in The Big Lebowski, “this aggression will not stand, man!” It is all but certain District Attorney Billy and his case will not fare any better than did that of the small-town police chief in Kansas who raided the local newspaper and seized all its equipment over the reporting of a local businesswoman’s DUI record.
But even when intimidation fails, the hassle and embarrassment of an arrest and the confiscation of phones and equipment cannot be far from the minds of local journalists these days.
That such cases are beginning to pop up around the country is one more sign that America is drifting away from our constitutional moorings.