Shield law may protect publication charges

Published 12:00 pm Wednesday, November 8, 2023

National journalism leaders have condemned the arrests of two Atmore newspaper employees, according to reports.
According to the Editor and Publisher’s website, National Press Club President Eileen O’Reilly and National Press Club Journalism Institute President Gil Klein made a joint statement on the arrests of Atmore News Reporter Don Fletcher and
Publisher Sherry Digmon. Both were arrested Oct. 27 on charges that they published grand jury information. The arrests stem from an article that was published in the Oct. 25 edition of the Atmore News where a subpoena and COVID checks were
mentioned.
“We are outraged that local authorities in Escambia County, Alabama, arrested and charged Atmore News reporter Don Fletcher and publisher Sherry Digmon in response to the publication of a news article,” the statement reads. “Journalists in the United States have the right and the responsibility to report information of public interest to their communities. That is exactly what Don Fletcher and Sherry Digmon were doing when they reported and published an article on Oct. 25 regarding an investigation into a local school system’s use of federal COVID funds.”Arresting journalists in response to the publication of a news article is contrary to democratic values. It should not happen anywhere in the world, and is especially concerning in the United States, where we have strong and well-established legal protections guaranteeing the freedom of the press. We are deeply concerned by this violation of the First Amendment rights of these journalists. We call for all charges against them to be dropped immediately, and we expect a full investigation by appropriate state and federal authorities into why these journalists were arrested for simply doing their jobs.”
Digmon and Fletcher were arrested for violating Alabama State Code 12-16-215, which states: Grand juror, witness, etc., are prohibited from revealing, disclosing, etc., a juror’s questions, considerations, etc.; no person to directly, indirectly, etc., by any means obtain information as to juror’s questions, considerations, etc. No past or present grand juror, past or present grand jury witness or grand jury reporter or stenographer shall willfully at any time directly or indirectly, conditionally or unconditionally, by any means whatever, reveal, disclose or divulge or attempt or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state. Nor shall any person at any time, directly or indirectly, conditionally or unconditionally by any means whatever, corruptly or with intent to influence a grand juror or other person authorized by law to attend a grand jury, or by threat of harm to person or property, or by force applied to person or property, or by threatening letter or communication, or by offer of reward, remuneration, gift, benefit or thing of value of whatever nature or kind, obtain or endeavor to obtain, any information pertaining to, or any knowledge of any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence or other matter taken or transpiring within or before any grand jury of this state.
When asked if it’s proper for journalists to publish grand jury information, Alabama Press Association General Counsel Dennis Bailey said the answer depends on how the information is acquired and the nature of the information.
“If the reporter is a witness before the grand jury, (the reporter) has a restriction on disclosing the questions that were asked and what actually happened inside the grand jury room,” Bailey said. “Anybody can potentially violate the grand jury statute by illegally obtaining the information due to coercion for the purpose of trying to influence the grand jury proceedings. If that’s what happened, then the answer is no, it’s not proper and it can be a violation to coerce people to give information about the grand jury that’s secret.”
However, Bailey said in his opinion if a person gets a grand jury subpoena and gives the information on the grand jury subpoena to a reporter, and the reporter had nothing to do with obtaining it illegally, then it wouldn’t be a violation of the grand jury secrecy act.
“There’s a Supreme Court case (in 2001) where a reporter was given information that was gathered improperly by eaves dropping techniques, or illegal wire tapping. The person gave that information to the reporter, and the reporter was arrested for disseminating illegal wiretap information. It went all the way to the U.S. Supreme Court. The court said as long as the reporter had nothing to do with the illegal wire tapping that went on, for a matter of public concern, the reporter can publish truthful information that had been illegally obtained by others. They have a First Amendment right to do that.”
On the statute that Digmon and Fletcher were arrested for on Oct. 27, Bailey said it deals with two parts, one of which includes those involved in the grand jury process keeping it secret.
“The second part of it pertains to anybody who coerces somebody else to give information about the grand jury process,” he said. “When a subpoena has been issued, and once the subpoena has been served to the witness, the argument is that it’s no longer secretive information. What testimony is given in the grand jury is supposed to be secret,” Bailey said.
In addition to Digmon and Fletcher, Escambia County School System Payroll/Benefits Clerk Veronica Fore was also arrested on the same charge.
Regarding how the Atmore News acquired the grand jury information, Bailey said that in Alabama reporters are protected under the Shield Law in Alabama State Code 12-21-142, which says a reporter, in the course of their business, cannot be questioned by a court or grand jury to give up the name of their source.
“I don’t know what happened here, but if somebody gives a reporter grand jury information with a promise of confidentiality, then a reporter can refuse to divulge the source and is protected by statute,” Bailey said.
The Shield Law states: No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the
Legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed.

Not all states have shield laws like this, but Alabama does.