Staff Report –
Freedom of the Press Foundation –

An Alabama newspaper publisher and reporter were arrested last week and charged under a grand jury secrecy statute for the “crime” of reporting on a grand jury subpoena provided by a source.

The publisher, Sherry Digmon, was arrested again — this time for soliciting ads from the local school district while serving on the Board of Education.

“Arresting journalists for reporting the news is blatantly unconstitutional,” said Freedom of the Press Foundation Director of Advocacy Seth Stern. “Grand jury secrecy rules bind grand jurors and witnesses, not journalists. The district attorney should blame himself for failing to maintain the secrecy of grand jury proceedings, not jail journalists for doing their jobs.”

“The First Amendment protects journalists who publish information they lawfully obtain from sources,” said FPF Deputy Director of Advocacy Caitlin Vogus. “We don’t arrest journalists in this country for reporting news that authorities would prefer to keep secret.”

“Authorities should drop the charges immediately,” Stern added. “But that’s not enough. The journalists should sue and those responsible should be investigated and disciplined. The officials involved either knew the arrests were unconstitutional and proceeded anyway or don’t realize their actions are completely indefensible under the First Amendment. Either way, they have no business holding public office in the United States.”

Digmon was arrested along with journalist Don Fletcher over reporting by the Atmore News in Escambia County, Alabama, about an investigation into a local Board of Education’s handling of COVID funds. (Digmon also serves on the school board.)

The Atmore News story reported that District Attorney Stephen Billy had issued a grand jury subpoena for checks labeled as COVID payments. That, according to Billy, violated state law.

The problem is that Alabama’s grand jury secrecy statute prohibits grand jurors, witnesses and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not — and under the First Amendment, cannot — codify a prior restraint that bars the press from disclosing grand jury information it obtains from a source.

The Alabama statute also includes a provision barring grand jury outsiders from, for example, threatening or bribing grand jury participants for information. But according to Stern “Any attempt to distort that vague provision to criminalize routine journalism would constitute an inexcusable abuse of power in clear violation of the First Amendment.”

And based on comments from Billy, it does not appear that Digmon and Fletcher’s arrest are related to any alleged interactions with grand jury participants. Instead, the Atmore Advance reports that Billy said their arrests stem from the publishing of an article. Billy complained to the Advance not about how the journalists obtained grand jury information but about purported inaccuracies in their reporting of his comments at a board meeting.

As for today’s arrest of Digmon over soliciting ads from the school, Stern commented, “It seems highly suspicious that prosecutors first objected to the school district’s presumably longstanding practice of advertising in a local paper immediately after the paper published content that angered the district attorney.”

We will continue monitoring that story as it develops.

Authorities who have retaliated against journalists with unconstitutional arrests and criminal investigations have faced legal and other consequences in the past.

In 2013, Phoenix New Times journalists received a $3.75 million settlement following their wrongful arrest by Sheriff Joe Arpaio’s deputies for publishing grand jury information. In that case it turned out that the supposed grand jury hadn’t actually convened. A federal appellate court commented that “It is hard to conceive of a more direct assault on the First Amendment than public officials ordering the immediate arrests of their critics.”

Earlier this year, a raid of the Marion County Record in Marion, Kansas over alleged newsgathering crimes received national attention. The chief of police who orchestrated the unconstitutional raid was ultimately forced to resign.

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