Smith v. Butterworth
| Decision Date | 27 February 1989 |
| Docket Number | No. 88-3097,88-3097 |
| Citation | 866 F.2d 1318 |
| Parties | 16 Media L. Rep. 1295 Michael SMITH, Plaintiff-Appellant, v. Robert A. BUTTERWORTH, Jr., T. Edward Austin, Jr., as State Attorney to the Charlotte County Special Grand Jury, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Gregg D. Thomas, Holland & Knight, Tampa, Fla., for plaintiff-appellant.
George Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before VANCE and KRAVITCH, Circuit Judges and HENDERSON, Senior Circuit Judge.
Plaintiff Michael Smith appeals from the district court's entry of summary judgment for defendants. We reverse.
Appellant is a reporter for the Charlotte Herald-News in Charlotte County, Florida. On March 27, 1986, appellee T. Edward Austin, Jr., state attorney for Duval County and special prosecutor, called Smith to testify before a special grand jury investigating allegations of corruption in the Charlotte County state attorney's office and the sheriff's department. When Smith testified, Austin's staff warned him that any disclosure of his testimony would violate chapter 905.27 of the Florida Statutes. That statute provides in relevant part that
(1) A grand juror, ... reporter, ... 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 ... any testimony of a witness examined before the grand jury, or the content, gist, or import thereof....
Fla.Stat. Sec. 905.27 (1985) (emphasis added). Any person who violates the statute is guilty of a first degree misdemeanor. Sec. 905.927(4). A violation also constitutes criminal contempt. Sec. 905.27(5).
The grand jury terminated its investigation in April 1986. Smith now wants to publish a news story and possibly a book about the subject matter of the special grand jury's investigation, including what he observed of the process and the matters about which he testified. On November 18, 1987, Smith brought an action for declaratory and injunctive relief, requesting the district court to declare the statute to be an abridgment of speech in violation of the first amendment. He also sought to enjoin the state from prosecuting him under the statute, alleging that prosecution would deprive him of his first amendment rights under color of state law. The court granted defendants' motion for summary judgment, holding that the permanent and total nondisclosure of grand jury testimony was necessary to achieve the state's interest in preserving the efficacy of grand jury proceedings, and that this interest sufficiently outweighed appellant's rights under the first amendment. 678 F.Supp. 1552.
Appellant argues that section 905.27 is unconstitutionally overbroad, in that it prohibits any person appearing before the grand jury from ever disclosing matters testified to, even long after the investigation is terminated. The question presented by this appeal thus is a narrow one. We are not addressing the legitimacy of a statute which penalizes disclosure by grand jurors, court reporters, or other persons who acquire information by virtue of their official participation in grand jury proceedings; nor are we faced with a statute that precludes witnesses from divulging the nature of their testimony during the course of an ongoing investigation. Rather, we address the constitutionality of a state statute that imposes on witnesses appearing before the grand jury a permanent and absolute obligation of secrecy and makes violations of that obligation criminally punishable.
We note at the outset that the freedom of speech afforded by the first amendment is not absolute. Whitney v. California 74 U.S. 357, 371, 47 S.Ct. 641, 646, 71 L.Ed. 1095 (1927); Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031 (1942). Legislation that penalizes the publication of truthful information, however, seldom can satisfy constitutional standards, Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102, 99 S.Ct. 2667, 2670, 61 L.Ed.2d 399 (1979), and "requires the highest form of state interest to sustain its validity." Id. at 102, 99 S.Ct. at 2670. Even where a sufficiently compelling state interest can be shown, those arguing in favor of a regulation's validity must further demonstrate that its goal cannot be achieved by means that do not infringe as significantly on first amendment rights. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 587 n. 7, 103 S.Ct. 1365, 1372 n. 7, 75 L.Ed.2d 295 (1983). 1
Appellees maintain that several important governmental interests are promoted by the permanent and absolute ban on disclosure. Present and future investigations would be undermined, they contend, if witnesses were permitted to divulge the nature of their testimony. The effectiveness of the grand jury system itself would be impaired if jurors were not completely assured that their identities would remain unknown. Finally, appellees argue that confidence in the grand jury as an institution would be undermined if the identities of those investigated but not indicted were revealed. While we acknowledge that these interests are legitimate, we do not view them as sufficiently compelling to justify the criminal punishment of any person, including a witness, who divulges the content of grand jury testimony.
The statute at issue is similar to one challenged in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). A newspaper publisher in that case was convicted under a state law proscribing the disclosure of information pertaining to proceedings before the state judicial review commission. While recognizing that ...
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