An attorney representing the publisher and a reporter at The Atmore News is requesting a judge dismiss charges that the two violated the state’s grand jury secrecy law for a story printed in the publication last fall.

In separate but similar motions filed on Monday and Tuesday, attorney Cierra White requests Judge Ben Fuller to dismiss charges that the two allegedly revealed evidence in a grand jury, noting that neither of the journalists were participants in a grand jury proceeding.

Reporter Donald Fletcher, 69, and Sherry Digmon, 73, face two counts each of violating the state’s grand jury secrecy law with each count a felony punishable by up to three years in prison. The lawsuit stems from an Oct. 25 story that contained information related to an investigation overseen by Escambia County District Attorney Stephen Billy.

The motion claims that in prosecuting the journalists, the State of Alabama is “in violation of the First Amendment” that provides press freedoms. A status hearing in the case against the two journalists is set for 9 a.m. on Feb. 26, at the Escambia County Courthouse in Brewton.

The case has thrust the tiny southeastern town of Atmore into the national spotlight, with free press advocates claiming Billy is pursuing unconstitutional charges aimed at silencing journalists. Billy, who did not respond to a request to comment, has not provided any public reasoning as to why he is pursuing the original charges were filed in early November.

An attorney with the White & White law firm in Brewton, which is handling the cases, did not return a call for comment.

Dennis Bailey, an attorney with the Alabama Press Association, said the attorneys are moving forward correctly in their motion to dismiss.

The seven-page filing cites numerous cases in which federal courts have upheld a journalist’s rights to publish, even if a case involved confidential records.

Among the cases is the 1978 Supreme Court decision in Landmark Communications Inc. v. Virginia, in which the Supreme Court held it unconstitutional for the state to convict a newspaper publisher for violating a Virginia state law that made it a crime to divulge information of a confidential proceeding before a state judicial review commission that hears cases about a judge’s misconduct. The original lawsuit was based on a newspaper article that named the judge who was being investigated for misconduct.

“In the (Escambia County) case, the State of Alabama is seeking to punish the publication of information relating to alleged governmental misconduct, speech which has traditionally been recognized as lying at the core of the First Amendment,” the filing states. “The article published by Atmore News, like the publisher in Landmark Communications, provided accurate information and, in doing so, clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.”

Said Bailey, “it seems they are making the right arguments, citing the right decisions to support dismissal of the complaint.”

The lawsuit is part of a unfolding set of actions within the Escambia County School System that began in October with a controversial 4-3 vote to not renew former Superintendent Michele McClung’s contract, which was set to expire in June 2024. The vote came during a meeting in which Billy was among those who voiced their dissatisfaction over having McClung dismissed.

The board remained splintered in December, when McClung’s contractual buyout came up for a vote, and was approved by the school board. Four board members who advocated for McClung’s removal provided few comments about their concerns while three board members were vocal supporters for McClung. Former assistance Superintendent Michele Collier has since replaced McClung.

The terms of McClung’s buyout were not available in December, and the Escambia County School System has refused to release the details. Kirkman Garrett, an attorney representing the school system, declined an AL.com request for details about the buyout’s terms by simply saying a records request “does not comply by Alabama laws.”

Digmon and board vice-president Cynthia Jackson are both facing criminal charges. Jackson is also faced with violating the grand jury secrecy law, though it’s unclear when her case might get heard before a judge.

Also charged is 48-year-old Ashley Fore of Brewton, a bookkeeper at the school system. Fore was charged with allegedly revealing grand jury evidence to the media. Her case is also up for consideration on Feb. 26.

Digmon also faces additional charges including an ethics offense for using her public position for personal gain, and an impeachment charge. Digmon could be the first local school board member impeached in Alabama in 17 years under the indictment.

Sally Smith, president of the Alabama Association of School Boards, confirmed that their legal assistance fund is supporting Digmon only in her impeachment case “as it relates to the School Board Governance Improvement Act.” The assistance, Smith said, is limited to “providing legal research and assistance.”

Smith blasted Billy in early November for supporting a “weaponization” of Alabama law by charging Digmon with an impeachment offense. The indictment accuses Digmon of violating the School Board Governance Improvement Act of 2021, that establishes training requirements, and accountability measures for all local school board members.

Smith, at the time, called the charge the “most outlandish situation” she’s seen of outside influence in a school board matter in her almost 37 years.

Under the indictment, Digmon is accused — among other things — of ignoring “all the positive things” that McClung had accomplished since her hiring in 2021. McClung, in December, highlighted improvements in the school system’s report card. Digmon was one of the four school board members to vote to not renew McClung’s contract.

By ignoring McClung’s record, Digmon’s decision “was made contrary to her oath and the provisions of the School Board Governance Improvement Act of 2012,” the filling by Billy in November stated.

The impeachment indictment also accuses Digmon of violating her duty as an elected school board member “by refusing to publish articles which promoted the school system and the superintendent, which were written by a contract writer of of the school system.” Digmon also “never abstained from voting to approve payments to her own business” while serving on the school board, according to the indictment.

Board member Mike Edwards told AL.com in December that part of the controversy stems over the handling of the county’s accounting system which he claimed was being used by a previous superintendent to “hide corruption and mismanagement.”

Edwards claimed that Digmon “demanded money from the previous superintendent and CFO to support her newspaper,” in the amount of $800 a month for “an undetermined period.” He also said that Digmon and Jackson were part of a propaganda campaign against McClung in “fabricated untruths they shared against the county.”

Media law and ethics experts, following the filing of the charges, blasted the District Attorney’s decision to levy charges against journalists for publishing what they said was leaked material.

Digmon and Fletcher’s story has caught the attention from free press advocates nationwide. The two have bene invited to speak about their experiences at this year’s Reva & David Logan Symposium on Investigative Reporting, April 19-21, at University of California, Berkeley (UC Berkeley), according to a story published Wednesday in The Atmore News.

Digmon, according to the story, declined the invitation.

“Since our first court date is not until the end of this month and we don’t know how long we’ll be involved in legal proceedings beyond that, we must regretfully decline the invitation,” she wrote in a letter to the director of operations at the UC Berkeley Investigative Reporting Program, according to the story. “Again, let me say Mr. Fletcher and I are honored.”