Bail terms bar illegally arrested Alabama journalists from reporting
Freedom of the Press Foundation
November 2, 2023
An Alabama journalist is charged with “print[ing] an article containing grand jury information” while his publisher is charged with approving the article. As a term of their bail, they're both censored from reporting on criminal investigations.
FOR IMMEDIATE RELEASE
Court documents reveal that an Alabama newspaper publisher and reporter were ordered to refrain from “communication” about any criminal investigations as a condition of being released on bail. They were arrested last week for the “crime” of reporting on a grand jury investigation of a school board’s handling of COVID funds.
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“It’s hard to believe that officials honestly think the First Amendment entitles them to arrest journalists for reporting news and then censor them as a condition of release,” said Freedom of the Press Foundation (FPF) Director of Advocacy . “There’s a pattern here that indicates an intentional abuse of power to retaliate against the press.”
The bail terms imposed on Atmore News publisher Sherry Digmon and reporter Don Fletcher essentially prohibit the paper from reporting on crime — an obviously core function of local journalism. As  explained, “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.”
But the order broadly prohibits all reporting on “ongoing criminal investigations,” regardless of whether they have anything to do with the charges against Digmon and Fletcher. According to , “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.”
It’s also noteworthy that Escambia County District Attorney Stephen Billy, in what he must have believed was somehow a defense of his decision to bring charges against the journalists, complained that he believed the Atmore News’s coverage of him was unfair. Tellingly, a non-journalist who was also arrested for allegedly violating the grand jury secrecy law was not similarly gagged as a condition of bail.
Digmon and Fletcher were first arrested Friday (FPF’s statement on the arrests is available here). The complaint against Fletcher accuses him of “print[ing] an article containing grand jury information” while Digmon stands accused of “approv[ing] an article containing grand jury information and allow[ing] the article to be printed in the Atmore News.”
But Alabama’s grand jury secrecy statute only prohibits grand jurors, witnesses, and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not prohibit journalists from reporting information provided by sources, presumably because the legislators who drafted the law knew that would be unconstitutional.
As FPF Deputy Director of Advocacy  has explained, “The First Amendment protects journalists who publish information they lawfully obtain from sources,” even if the sources are alleged to have broken the law.
Nonetheless, after illegally arresting the journalists on felony charges for constitutionally protected news reporting, Escambia County authorities have now effectively silenced them as well, through their censorious and unconstitutional bail terms.