(Mischa Keijser/Getty Images)
A newspaper publisher and a reporter have been arrested for publishing an article that officials said was based on confidential grand-jury evidence — a move that press-freedom advocates are characterizing as an unconstitutional attack on the news media.
Publisher Sherry Digmon and reporter Don Fletcher of the Atmore News in southwestern Alabama were arrested last week after a story by Fletcher disclosed details of an investigation into the local school board’s payments to seven former school-system employees.
Digmon and Fletcher were charged by the Escambia County district attorney with revealing grand-jury proceedings, a felony under Alabama law. They face up to five years in jail.
While it’s illegal for a grand juror, witness or court officer to disclose grand-jury proceedings, it’s not a crime for a media outlet to publish such leaked material, provided the material was obtained by legal means, legal experts said.
Theodore J. Boutrous, an attorney who has represented media organizations, called the Alabama case “extraordinary, outrageous and flatly unconstitutional.”
He said the U.S. Supreme Court has repeatedly held that the First Amendment forbids punishing journalists for publishing information of public importance, even if the information came from a source who broke the law in leaking it. “And that applies to grand-jury information,” he said.
Jane Kirtley, a professor of media ethics and law at the University of Minnesota, said the Atmore arrests follow a number of other recent cases in which local prosecutors have used warrants, threats and criminal proceedings to harass or pressure journalists.
Such prosecutions can be costly, especially for small news organizations, she said. They also serve as “a dead crow on a fence,” a warning to would-be leakers and other journalists that they will face legal jeopardy if they disclose secret or sensitive information or pursue aggressive investigations.
The arrests are reminiscent of the controversial police raid this summer on the Marion County Record. Local officials accused the small Kansas newspaper of illegally obtaining and publishing private records, and sent police and sheriff’s deputies to the newspaper’s office and the publisher’s home to seize evidence.
The raid was widely condemned as a violation of press protections under the First Amendment. It drew national media attention after publisher Eric Meyer’s 98-year-old mother, Joan Meyer, died a day after police searched their home. Amid the criticism, the county attorney withdrew the warrant and returned seized items to the paper. The local police chief who led the raid resigned last month.
Digmon, the Atmore paper’s publisher and co-owner, is also a member of the county school board. She recently voted against renewing the contract of the county education superintendent — an official who was publicly supported by Stephen Billy, the district attorney.
She and Fletcher were released from custody after posting bail.
Reached at the newspaper’s offices on Wednesday, Digmon declined to discuss the case. “I wish I could,” she said. “I would rather not answer. I can only refer you to my attorney.”
The attorney, who represents both Digmon and Fletcher, didn’t respond to a request for comment. Nor did Billy.
Also arrested on Friday with Digmon and Fletcher was Veronica “Ashley” Fore, the Escambia school system’s payroll bookkeeper, according to the Atmore News. Fore was also charged with revealing grand jury information and allegedly providing the newspaper with documents that were the basis of its Oct. 25 story. She and her attorney could not be reached for comment.
In comments to the Atmore Advance, the prosecutor said he brought charges because disclosure of grand-jury proceedings is “not allowed. All three of them, [including] the girl [Fore], were all charged with the same thing. But, you just can’t do that, and there’s no reason for that. Innocent people get exposed, and it causes a lot of trouble for people.”
The Committee to Protect Journalists, a press-advocacy organization, called on local authorities to drop all charges against the newspaper, Digmon and Fletcher.
The publisher and reporter shouldn’t be prosecuted “for simply doing their jobs” by covering how school funds are spent, a newsworthy matter, said Katherine Jacobsen, the organization’s coordinator for the United States and Canada. She said the arrests create a chilling effect and are a misuse of taxpayer dollars.
In an interview, she added that public denunciations of the news media by political figures has created “permission” for prosecutors to use their powers against the media. “What local officials sometimes consider unflattering information is not illegal to publish,” she said. “Conflating the two is unacceptable.”
The story took another twist Wednesday when the Associated Press reported that Digmon was arrested again on a separate charge of using her school board position for personal gain in allegedly selling $2,500 worth of ads to the school system. Alabama ethics law prohibits public officials from soliciting money and items of value, though it exempts routine business transactions.