BUTTERWORTH, ATTORNEY GENERAL OF FLORIDA, ET AL. v. SMITH
No. 88-1993
Supreme Court of the United States
Argued January 16, 1990—Decided March 21, 1990
494 U.S. 624
George L. Waas, Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs were Robert A. Butterworth, Attorney General, pro se, and Louis F. Hubener, Assistant Attorney General.
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
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
“(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
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 implementing this latter function by ensuring the impartiality of that body. Douglas Oil Co. of California v. Petrol Stops Northwest, 441
“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., [356 U.S. 677 (1958)]. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co., supra, at 218-219 (footnote omitted).
At the same time, we have recognized that the invocation of grand jury interests is not “some talisman that dissolves all constitutional protections.” United States v. Dionisio, 410 U.S. 1, 11 (1973). Indeed, we have noted that grand juries are expected to “operate within the limits of the First Amendment,” as well as the other provisions of the Constitution. Branzburg v. Hayes, 408 U.S. 665, 708 (1972). See also Wood v. Georgia, 370 U.S. 375 (1962). We must thus balance respondent‘s asserted First Amendment rights against Florida‘s interests in preserving the confidentiality of its grand jury proceedings. See Landmark Com-
The Court examined the tension between First Amendment rights and government investigatory proceedings in Landmark Communications, supra. There, a Virginia statute made it a crime to divulge information regarding proceedings before the state judicial review commission. A newspaper publisher was convicted of violating the statute after publishing an article accurately reporting on a pending inquiry by the commission and identifying the state judge under investigation. This Court held that the conviction violated the United States Constitution, concluding “that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth‘s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.” Id., at 838. While assuming that the confidentiality of the judicial review proceedings served legitimate state interests, the Court observed that the State had “offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined.” Id., at 841. The Court also noted that over 40 States with similar judicial review procedures had found it unnecessary to criminalize the type of conduct at issue in order to preserve the integrity of their proceedings. Ibid.
Florida argues that our decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), rather than Landmark, governs the validity of its prohibition. In Rhinehart we held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery pro-
Here Florida seeks 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. See Landmark, 435 U.S., at 838; Wood, supra, at 388-389, 392. To justify such punishment, Florida relies on the interests in preserving grand jury secrecy acknowledged by the Court in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979). But we do not believe those interests warrant a permanent ban on the disclosure by a witness of his own testimony once a grand jury has been discharged. Some of these interests are not served at all by the Florida ban on disclosure, and those that are served are not sufficient to sustain the statute.
When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape—that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other.3 There is
Florida‘s interest in preventing the subornation of grand jury witnesses who will later testify at trial is served by the prohibition in question to this extent: if the accused is of a mind to suborn potential witnesses against him, he will have an additional opportunity to learn of the existence of such a witness if that witness chooses to make his grand jury testimony public. But with present day criminal procedure generally requiring the disclosure of witnesses on the part of the State, see, e. g.,
Florida undoubtedly retains a substantial interest in seeing that “persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co., supra, at 219. And the ban in question does serve that interest to some extent, although it would have the opposite effect if applied to a witness who was himself a target of the grand jury probe and desired to publicize this testimony by way of exonerating himself. But even in those situations where the disclosure by the witness of his own testimony could have the effect of revealing the names of persons who had been targeted by the grand jury but exonerated, our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech. See Landmark, supra, at 841-842 (“Our prior cases have firmly established ... that injury to official reputation is an insufficient reason for repressing speech that would otherwise be free“) (quotation omitted); cf. Florida Star v. B. J. F., supra (First Amendment precluded State from imposing damages for publication of rape victim‘s name); Smith v. Daily Mail Publishing Co., supra (State could not constitutionally punish the publication of a juvenile offender‘s name); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977) (State could not constitutionally enjoin the publication of a juvenile offender‘s name).
We also take note of 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 with respect to their own testimony to protect reputational
Against the state interests which we have just evaluated must be placed the impact of Florida‘s prohibition on respondent‘s ability to make a truthful public statement. The effect is dramatic: before he is called to testify in front of the grand jury, respondent is possessed of information on matters of admitted public concern about which he was free to speak at will. After giving his testimony, respondent believes he is no longer free to communicate this information since it relates to the “content, gist, or import” of his testimony. The ban extends not merely to the life of the grand jury but into the indefinite future. The potential for abuse of the Florida prohibition, through its employment as a de-
We agree with the Court of Appeals that the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent‘s First Amendment right to make a truthful statement of information he acquired on his own. Its judgment is therefore
Affirmed.
JUSTICE SCALIA, concurring.
The Court holds that the Florida statute is unconstitutional “insofar as [it] prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended.” Ante, at 626. I join the Court‘s opinion because I interpret that to refer to the information contained within the witness’ testimony, but not necessarily to the fact that the witness conveyed that information to the grand jury. I take that to be the meaning of the Court‘s later clarification that we affirm “respondent‘s First Amendment right to make a truthful statement of information he acquired on his own.” Ante this page.
I think there is considerable doubt whether a witness can be prohibited, even while the grand jury is sitting, from making public what he knew before he entered the grand jury room. Quite a different question is presented, however, by a witness’ disclosure of the grand jury proceedings, which is knowledge he acquires not “on his own” but only by virtue of being made a witness. And it discloses those proceedings for the witness to make public, not what he knew, but what it was he told the grand jury he knew. There may be quite good reasons why the State would want the latter information—which is in a way information of the State‘s own creation—to remain confidential even after the term of the grand jury has expired. It helps to assure, for one thing, that grand jurors will not be intimidated in the execution of their duties by the fear of unjustified public criticism to which they cannot respond. To allow them to respond, on the