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 alios, 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.
494 U. S.
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,
435 U. S. 838.
Seattle Times Co. v. Rhinehart, 467 U. S.
20 -- 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.
494 U. S.
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
Page 494 U. S. 625
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.
494 U. S.
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.
494 U. S.
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.
494 U. S.
635-636.
866 F.2d 1318, affirmed.
REHNQUIST, C.J., delivered the opinion for a unanimous Court.
SCALIA, J., filed a concurring opinion,
post, p. 636.
Page 494 U. S. 626
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:
Page 494 U. S. 627
"(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). [
Footnote 1]
Page 494 U. S. 628
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
(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 provisions
Page 494 U. S. 629
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 (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 (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 (1989), and now affirm. [
Footnote 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 implementing this latter function by ensuring the
impartiality of that body.
Douglas Oil Co. of California
v. Petrol Stops Northwest, 441
Page 494 U. S. 630
U.S. 211,
441 U. S.
218-219, n. 9 (1979); Brown, The Witness and Grand Jury
Secrecy, 11 Am.J.Crim.Law 169, 170 (1983). Today, grand jury
secrecy remains important to safeguard a number of different
interests.
"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., 356 U. S. 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 pre-indictment 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
441 U. S.
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,
410 U. S. 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,
408 U. S. 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 Communications,
Page 494 U. S. 631
supra, at
435 U. S. 838
(balancing State's interest in preserving confidentiality of
judicial review proceedings against rights of newspaper reporting
on such proceedings);
Branzburg, supra, at
408 U. S.
690-691 (balancing interest in effective grand jury
proceedings against burden on reporters' news gathering from
requiring disclosure of sources).
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
435 U. S. 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
435 U. S. 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 procedures
Page 494 U. S. 632
did not offend the First Amendment. Here, by contrast, we deal
only with respondent's right to divulge information of which he was
in possession before he testified before the grand jury, and not
information which he may have obtained as a result of his
participation in the proceedings of the grand jury. In such cases,
where a person "lawfully obtains truthful information about a
matter of public significance," we have held that "state officials
may not constitutionally punish publication of the information,
absent a need to further a state interest of the highest order."
Smith v. Daily Mail Publishing Co., 443 U. S.
97,
443 U. S. 103
(1979);
Florida Star v. B.J.F., 491 U.
S. 524,
491 U. S. 533
(1989).
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
435 U. S. 838;
Wood, supra, at
370 U. S.
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. [
Footnote 3] There is
Page 494 U. S. 633
also no longer a need to prevent the importuning of grand
jurors, since their deliberations will be over. Similarly, the
concern that some witnesses will be deterred from presenting
testimony due to fears of retribution is, we think, not advanced by
this prohibition; any witness is free
not to divulge his
own testimony, and that part of the Florida statute which prohibits
the witness from disclosing the testimony of
another
witness remains enforceable under the ruling of the Court of
Appeals.
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., Fla.Rule Crim.Proc. 3.220(a), the names of these
witnesses will be available to the accused sometime before trial in
any event. Florida provides substantial criminal
Page 494 U. S. 634
penalties for both perjury and tampering with witnesses,
see Fla.Stat. §§ 837.02, 914.22 (1989), and its courts
have subpoena and contempt powers available to bring recalcitrant
witnesses to the stand. We think the additional effect of the ban
here in question is marginal, at best, and insufficient to outweigh
the First Amendment interest in speech involved.
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
441 U. S. 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
435 U. S.
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
Page 494 U. S. 635
interests or any of the other interests asserted by Florida.
Federal Rule of Criminal Procedure 6(e)(2), governing grand jury
secrecy, expressly prohibits certain individuals other than
witnesses from disclosing "matters occurring before the grand
jury," and provides that "[n]o obligation of secrecy may be imposed
on any person except in accordance with this rule." The pertinent
Advisory Committee Notes on Rule 6(e)(2), 18 U.S.C.App. p. 726,
expressly exempt witnesses from the obligation of secrecy, stating
that
"[t]he seal of secrecy on witnesses seems an unnecessary
hardship, and may lead to injustice if a witness is not permitted
to make a disclosure to counsel or to an associate."
Similarly, only 14 States have joined Florida in imposing an
obligation of secrecy on grand jury witnesses. Of the remaining 35
States, 21 either explicitly or implicitly exempt witnesses from a
general secrecy obligation, and 14 simply remain silent on the
issue.
See 2 Beale & Bryson,
supra, n. 3, §
7.05, pp. 20-21, and nn. 18-21. [
Footnote 4] While these practices are not conclusive as to
the constitutionality of Florida's rule, they are probative of the
weight to be assigned Florida's asserted interests and the extent
to which the prohibition in question is necessary to further
them.
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
device
Page 494 U. S. 636
to silence those who know of unlawful conduct or irregularities
on the part of public officials, is apparent.
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.
[
Footnote 1]
The entire text of § 905.27 provides as follows:
"905.27. Testimony not to be disclosed; exceptions."
"(1) A grand juror, state attorney, assistant state attorney,
reporter, stenographer, interpreter, or any other person appearing
before the grand jury shall not disclose the testimony of a witness
examined before the grand jury or other evidence received by it
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. When
a court orders the disclosure of such testimony pursuant to
subsection (1) for use in a criminal case, it may be disclosed to
the prosecuting attorney of the court in which such criminal case
is pending, and by him to his assistants, legal associates, and
employees, and to the defendant and his attorney, and by the latter
to his legal associates and employees. When such disclosure is
ordered by a court pursuant to subsection (1) for use in a civil
case, it may be disclosed to all parties to the case and to their
attorneys and by the latter to their legal associates and
employees. However, the grand jury testimony afforded such persons
by the court can only be used in the defense or prosecution of the
civil or criminal case and for no other purpose whatsoever."
"(3) Nothing in this section shall affect the attorney-client
relationship. A client shall have the right to communicate to his
attorney any testimony given by the client to the grand jury, any
matters involving the client discussed in the client's presence
before the grand jury, and any evidence involving the client
received by or proffered to the grand jury in the client's
presence."
"(4) Persons convicted of violating this section shall be guilty
of a misdemeanor of the first degree, punishable as provided in s.
775.083, or by fine not exceeding $5,000, or both."
"(5) A violation of this section shall constitute criminal
contempt of court."
[
Footnote 2]
In his complaint, respondent also sought a declaration that he
was entitled to divulge his "experience" before the grand jury.
Whatever this term might encompass, it is clear that the Court of
Appeals limited its holding to a witness "testimony" before the
grand jury. Since respondent has not sought review of any portion
of this ruling, we similarly limit our holding to the issue of a
witness' grand jury testimony.
[
Footnote 3]
In cases where an arrest is contemplated, there may be a lag
time between the issuance of the indictment and the arrest. As a
result, the Federal Rules of Criminal Procedure and many States
have provided a mechanism for the sealing of indictments pending
the indictee's arrest.
See Fed.Rule Crim.Proc. 6(e)(4); 1
S. Beale & W. Bryson, Grand Jury Law and Practice § 6.40, pp.
232-233, and nn. 2, 3 (1986). Other States, like Florida, have
simply prohibited court officers or grand jurors from disclosing
the fact that an indictment has been returned before an arrest is
made.
Id. § 6.40, p. 233, and n. 4. In such cases, there
may be instances where the disclosure by a grand jury witness of
his own testimony might lead the accused to infer that he had been
indicted from the fact that the witness was asked about the
accused's conduct. This would seem to be a very speculative
possibility, and it did not lead the drafters of the Federal Rules
of Criminal Procedure, nor the majority of States, to impose an
obligation of secrecy on grand jury witnesses.
See infra
at
494 U. S.
634-635. We similarly conclude that Florida's interest
by reason of this hypothesis is not sufficient to justify the
State's post-investigation ban on a witness's disclosure of his own
testimony.
Petitioners argue that the State's interest in preventing a
target's flight remains valid in cases where the term of a grand
jury expires and an investigation is continued with another grand
jury. We are not confronted with this situation in the present case
and, accordingly, express no opinion on whether a State could
prohibit a witness from revealing his testimony under such
circumstances.
[
Footnote 4]
But see Tex.Code Crim.Proc.Ann., Art. 20.16 (Vernon
1977) (imposing obligation of secrecy where Beale & Bryson list
as silent).
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
494 U. S. 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
Page 494 U. S. 637
other hand -- by denying that the witness in fact said what he
claims to have said, or by pointing out the contradictory testimony
of other witnesses -- would have its own adverse effects, including
the subjection of grand jurors to a degree of press attention and
public prominence that might, in the long run, deter citizens from
fearless performance of their grand jury service. I do not say that
these state interests are necessarily sufficient, but only that
they are not presented by the narrow question we decide today.