The First Amendment provides broad protections for journalists, not only as to what they publish, but also how they collect information. For instance, publishing leaked government documents is protected, even if the acts that provided journalists with these documents may be subject to criminal proceedings.
In recent months, however, a couple of law enforcement agencies have decided journalism is a criminal activity. In Marion County, Kansas, a local newspaper (and the paper’s owner’s home) was raided under the theory that attempting to verify information about a local business owner’s DUI arrest violates the state’s computer crime laws.
This decision to treat journalism as criminal activity has backfired, resulting in the prosecutor rescinding the warrants and the local police chief deciding to call it quits rather than continue to defend his indefensible actions.
The Freedom of the Press Foundation is highlighting another attack on journalists by law enforcement, this time in Alabama. What should have been considered journalism was treated as a criminal act by cops far too willing to leave their boot prints on the First Amendment than simply move on with their law enforcement lives and go after actual criminals.
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.
And today, 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 (FPF) 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.”
It’s true that revealing grand jury information can be a criminal act. But even if that’s the case here, the criminal is the person handing the information to Alabama journalists, rather than the journalists themselves.
While it’s true it’s difficult to discover journalists’ sources (and for good reason!), that doesn’t mean the next best thing is jailing reporters for doing something journalists do every day: report on information given to them by their sources.
It’s not as though this is some unexplored area of law where officers acted in good faith. These officers will be not-so-gently reminded of the decades of court precedent while defending themselves from the inevitable lawsuits their actions will provoke.
The crime here — one wholly imagined by the local prosecutor — isn’t even a crime:
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.
There’s something a bit shadier going on here that involves Sherry Digimon, who clearly had a conflict of interest while holding a government position without divesting herself of her newspaper publishing duties.
According to the indictment, count one alleges Digmon, who is serving as the board member for District 6, did in the course of her position as a school board member, use her position for personal financial gain by selling ads in a publication, Atmore Magazine and/or Grace Publishing LLC, which she has a financial interest in and which received a financial gain in excess of $2,500, in violation of Code of Alabama 36-25-5(a).
Count two of the indictment alleges Digmon did in the course of her position as a school board member solicit a thing of value U.S. currency for payment of advertising, from a subordinate, Superintendent John Knot and/or Chief School Financial Officer Julie Madden, by soliciting ads for the financial benefit of a business, to-wit: Atmore Magazine and/or Grace Publishing LLC, which she has a financial interest in and having a financial gain in excess of $2,500, in violation of Code of Alabama 13A-25-5(d).
While it’s true these ethical lapses could be treated as criminal acts, usually this sort of thing is handled with resignations, censure, or other acts of government that don’t include convening a grand jury, handing down indictments, or — in this particular case — arresting local journalists and the paper’s publisher.
Even if these charges are legit, the prosecutor added another one against Digmon — one that relates directly to her decision to publish an article the prosecutor Stephen Billy didn’t like.
The Atmore Advance reports that Billy himself admitted the arrests stem from the article’s publication and quotes him complaining about purported inaccuracies in Fletcher’s reporting of his comments at a board meeting.
All of this looks vindictive, rather than a legitimate use of law enforcement resources — something that’s never desirable but is far, far less permissible when the First Amendment is involved. And while prosecutors tend to have almost absolute immunity, the same can’t be said for the law enforcement officers involved in this abuse of power. All they really managed to do is carry out the instructions contained in my helpful pamphlet HOW TO GET SUED IN FEDERAL COURT. This won’t end well for the government. But, for now, it’s the First Amendment that gets to suffer.
