Butterworth v. Smith

Citation108 L.Ed.2d 572,494 U.S. 624,110 S.Ct. 1376
Decision Date21 March 1990
Docket NumberNo. 88-1993,88-1993
PartiesRobert A. BUTTERWORTH, Jr., Attorney General of Florida, et al., Petitioners v. Michael SMITH
CourtUnited States Supreme Court
Syllabus

When respondent Smith, a reporter, testified before a state grand jury about alleged improprieties committed by certain public officials, he was warned that if he revealed his testimony in any manner, he would be subject to criminal prosecution under Fla.Stat. § 905.27, which prohibits, inter alia, a witness from ever disclosing testimony given before a grand jury. After the grand jury terminated its investigation, Smith—who wanted to write about the investigation's subject matter, including, inter alia, his grand jury testimony—filed suit in Federal District Court, seeking a declaration that § 905.27 was an unconstitutional abridgment of speech, and an injunction preventing the State from prosecuting him. The court granted summary judgment to the State, but the Court of Appeals reversed. It held that § 905.27 is unconstitutional to the extent that it applies to witnesses who speak about their own testimony after the grand jury investigation is terminated.

Held: Section 905.27 violates the First Amendment insofar as it prohibits a grand jury witness from disclosing his own testimony after the grand jury's term has ended. Pp. 629-636.

(a) To determine the validity of Florida's ban, the State's interests in preserving the confidentiality of its grand jury proceedings must be balanced against Smith's asserted First Amendment rights. See Landmark Communications Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 which held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures did not offend the First Amendment—does not govern the validity of Florida's ban, since the instant case deals with divulging information that was in a witness' possession before he testified before the grand jury, not information he may have obtained from his participation in those proceedings. State officials may not constitutionally punish publication of lawfully obtained truthful information about a matter of public importance absent a need to further a state interest of the highest order. Pp. 629-632.

(b) Florida's interests in preserving grand jury secrecy either are not served by, or are insufficient to warrant, its ban. Once an investigation ends, there is no need to keep information from the targeted individual to prevent his escape, since he will have been either exonerated or charged. Nor is there a need to prevent the importuning of grand jurors whose deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears about retribution is not advanced by the ban, since any witness is free not to divulge his own testimony, and since the part of § 905.27 that prohibits a witness from disclosing the testimony of another witness remains enforceable. While Florida's interest in preventing the subornation of grand jury witnesses who will later testify at trial is served by the ban to the extent that the accused will have an additional opportunity to learn of the witness' existence, its effect is marginal at best and insufficient to outweigh the First Amendment interest involved. With present-day criminal procedure generally requiring disclosure of witnesses by the State, the witness' name will be available to the accused before trial anyway. In addition, Florida has substantial criminal penalties for both perjury and witness tampering, and its courts have subpoena and contempt powers available to bring recalcitrant witnesses to the stand. Although Florida has a substantial interest in seeing that persons who are exonerated will not be held up to public ridicule, that interest alone cannot justify the proscription of truthful speech, absent exceptional circumstances. Pp. 632-634.

(c) The fact that neither the drafters of the Federal Rules of Criminal Procedure, nor the drafters of similar rules in the majority of the States, found it necessary to impose an obligation of secrecy on grand jury witnesses to protect any of the interests asserted by Florida is probative of the weight to be assigned those interests and the extent to which the ban in question is necessary to further them. Pp. 634-635.

(d) The ban's impact on Smith's ability to make a truthful public statement is dramatic. Here, Smith, who before testifying was free to speak about information he possessed on matters of admitted public concern, believes that he is no longer free to communicate this information. The potential for abuse of the ban, through its employment as a device to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent. Pp. 635-636.

866 F.2d 1318 (CA 11 1989), affirmed.

REHNQUIST, C.J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, post, p. 636.

George L. Waas, Tallahassee, Fla., for petitioners.

Gregg Darrow Thomas, for respondent.

Chief Justice REHNQUIST delivered the opinion of the Court.

A Florida statute, with certain limited exceptions, prohibits a grand jury witness from ever disclosing testimony which he gave before that body. We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution.

Respondent was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing a series of newspaper articles, he obtained information relevant to alleged improprieties committed by the Charlotte County State Attorney's Office and Sheriff's Department. A special prosecutor appointed to investigate the allegations called respondent to testify before a special grand jury which had been convened as part of the investigation. At the time he testified, respondent was warned by the special prosecutor's staff not to reveal his testimony in any manner, and that such revelation could result in a criminal prosecution for violating Fla.Stat. § 905.27. Section 905.27 provides in pertinent part:

" (1) A grand juror . . . or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury . . . except when required by a court to disclose the testimony for the purpose of:

"(a) Ascertaining whether it is consistent with the testimony given by the witness before the court;

"(b) Determining whether the witness is guilty of perjury; or

"(c) Furthering justice.

"(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding." Fla.Stat. § 905.27 (1989).1 After the grand jury terminated its investigation, respondent set out to publish a news story—and perhaps a book—about the subject matter of the investigation, a publication which would include respondent's testimony and experiences in dealing with the grand jury. He sued in the United States District Court for the Middle District of Florida, seeking a declaration that § 905.27 was an unconstitutional abridgment of speech, and an injunction preventing the State from prosecuting him. The District Court granted summary judgment to the State, holding that Florida was entitled to make the judgment that a permanent and total ban on the disclosure of witness testimony was necessary to the proper functioning of the grand jury, and that "this is the exceptional case where a severe infringement on rights under the First Amendment is permissible." 678 F.Supp. 1552, 1561 (M.D.Fla.1988).

The United States Court of Appeals for the Eleventh Circuit reversed. Recognizing that the "question presented by this appeal . . . is a narrow one," the court held that "the pro- visions of section 905.27 prohibiting 'any other person' from disclosing the nature of grand jury testimony are unconstitutional to the extent that they apply to witnesses who speak about their own testimony after the grand jury investigation is terminated." 866 F.2d 1318, 1319, 1321 (CA 11 1989). While acknowledging that "the freedom of speech afforded by the first amendment is not absolute," the court concluded that the competing state interests were not sufficiently compelling to warrant the imposition of criminal sanctions on witnesses who revealed the content of their own grand jury testimony. Id., at 1319-1320. In reaching its determination, the court relied principally on our decision in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), and the fact that the Federal Rule of Criminal Procedure governing grand jury secrecy imposes no such obligation on grand jury witnesses. 866 F.2d, at 1320. We granted certiorari, 493 U.S. 807, 110 S.Ct. 46, 107 L.Ed.2d 16 (1989), and now affirm.2

Historically, the grand jury has served an important role in the administration of criminal justice. Although the English forerunner of the modern grand jury served primarily as a prosecutorial and investigative arm of the Crown and was designed to enhance the government's authority, by the 17th century the grand jury had developed an equally important function—to safeguard citizens against an overreaching Crown and unfounded accusations. See 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 1:02, pp. 5-8 (1986). The tradition of secrecy surrounding grand jury proceedings evolved, at least partially, as a means of...

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