In Re Grand Jury Matter, Antoni Gronowicz

HUNTER, Circuit Judge,

dissenting:

1. The majority opinion rests on the unsupported assumption that the “grand jury’s investigation appears, so far as the record discloses, to be focused upon the truth or falsity of the representations made by Gronowicz to Richardson & Snyder, the publisher, and Leonard, the motion picture producer.” It further characterizes the investigation as one in which Gronowicz would be “called to account for a conscious falsehood about the contents of a book.” But the majority deletes from its recitation of the case the Government’s own concessions that the focus of the grand jury investigation was on the truth or falsity of the book itself.

2. Before the district court, the Assistant U.S. Attorney stated that “Mr. Gronow-icz is right that the grand jury is investigating the truth or falsity of the book in the sense that the book purports to represent that he had exclusive access for two hundred hours to Pope John Paul II.” App. at 206. In its modified affidavit, submitted pursuant to the procedures outlined in In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir.), cert. denied, 421 U.S. 1015 , 95 S.Ct. 2424 , 44 L.Ed.2d 685 (1975), the Government again admits that the information sought in the subpoena is necessary to determine whether “the book accurately portrays any notes of conversations with the individuals in the book to whom the statements are attributed. In addition, they are necessary to determine if Gronowicz’s records support his claim that he interviewed the various individuals.” App. at 62. Moreover, the majority refuses to acknowledge that in a case such as this, where the fraud consists solely of procuring publication of a book which the Government alleges is untrue, the purpose of the investigation must be to establish the truth of the book itself, and not merely the truth of the representations about the book. If the book is true there can be no fraud. In sum, the Government’s purpose for procuring the information sought is clear. It wished to ascertain from Gronowicz the truth of the statements he made in his book.

3. The majority correctly states that a grand jury subpoena must fulfill three requirements in order to be valid. It must be “(1) relevant to an investigation, (2) properly within the grand jury’s jurisdiction, and (3) not sought primarily for another purpose.” (Sc hofield II), 507 F.2d at 966 . We must determine in this appeal, therefore, whether the government issued the subpoena with a “proper purpose” when its aim was to determine whether Gronowicz’s book is true or false. Unlike the majority, I do not believe that it did. Under established Supreme Court precedent, the First Amendment protects citizens from government prosecution for false speech. For instance, in New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Supreme Court recognized that “erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive,”’ 376 U.S. 254, 271-72 , 84 S.Ct. *993 710, 721 , 11 L.Ed.2d 686 (1964) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 , 83 S.Ct. 328, 338 , 9 L.Ed.2d 405 (1963)). And in N.A.A.C.P. v. Button, 371 U.S. 415, 445 , 83 S.Ct. 328, 344 , 9 L.Ed.2d 405 (1963), the Court emphasized that protection by the First Amendment does not depend on “the truth, popularity, or social utility of the ideas or beliefs which are offered.” In Cantwell v. Connecticut, 310 U.S. 296, 310 , 60 S.Ct. 900, 906 , 84 L.Ed. 1213 (1940), the Court concluded its discussion of the First Amendment by stating:

To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

4. It is clear, therefore, that established Supreme Court precedent supports the position that false speech, not alleged to be defamatory, receives protection under the First Amendment. The subpoena in this case, which seeks to reach notes and other supporting data from Gronowicz to prove the book’s truth, infringes significantly on the author’s first amendment rights. The Government asserts that its interest in enforcing the mail and wire fraud statutes justifies its action. But the Supreme Court has consistently held that official action with adverse impact on first amendment rights must be justified by a governmental interest that is “compelling,” “overriding,” or “paramount.” N.A.A.C.P. v. Button, 371 U.S. 415, 438 , 83 S.Ct. 328, 341 , 9 L.Ed.2d 405 (1963) (“only a compelling state interest ... can justify limiting First Amendment freedoms.”); Gibson v. Florida Legislative Investigating Committee, 372 U.S. 539, 546 , 83 S.Ct. 889, 893-94 , 9 L.Ed.2d 929 (1963) (“[I]t is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the state convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”); Bates v. Little Rock, 361 U.S. 516, 524 , 80 S.Ct. 412, 417 , 4 L.Ed.2d 480 (1960) (“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.”); Thomas v. Collins, 323 U.S. 516, 530 , 65 S.Ct. 315, 323 , 89 L.Ed. 430 (1945) (“Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.”).

5. Here the mail and wire fraud alleged by the Government is inextricably meshed with the contents of the book. The Government’s admitted purpose is to probe the truth of the book. Since the Government has not set forth an independent compelling interest — other than an interest in preventing the fraud of false statements in the book — I would not enforce the grand jury subpoena in this case.

6. The majority relies on Herbert v. Lando, 441 U.S. 153 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979), and a number of other civil libel cases as support for its position that the subpoena is valid. But these cases differ fundamentally from the case before us. In Herbert v. Lando, 441 U.S. 153 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979), for example, the plaintiff instituted a private civil action in diversity for defamation against a television network and two of its employees. The plaintiff conceded that he was a public figure and recognized that he was required to prove that the defendants published damaging falsehoods with knowledge that they were false or in reckless disregard of their truth or falsity. The defendants refused to answer a variety of questions asked in discovery, asserting that the first amendment barred any inquiry into the state of mind of those who edit, produce or publish news stories, and into the editorial process. The Supreme Court rejected the claim of first amendment privilege. The Court reiterated its holding in New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), that the *994 First Amendment did not prohibit a defamation action by á public figure where the plaintiff can prove knowing falsity or reckless disregard for truth or falsity. The Court then went on to hold that it could not “erect an impenetrable barrier” to the plaintiffs ability to prove its case by protecting defendants from inquiry into their editorial processes. Herbert, 441 U.S. at 170 , 99 S.Ct. at 1647 .

7. The majority’s reliance on Herbert is misplaced. That case resembles this one in that the investigation was aimed at discovering the truth or falsity of published material and the state of mind of the author. But the investigation in Herbert was instituted by a private party, allegedly defamed by the publication, rather than by the government, as in our case. No one can fail to discern the significance of the distinction. The First Amendment primarily protects citizens from government intrusion into their freedom of expression, and not against private efforts to gain vindication by civil actions.

8. Similarly, the majority’s citation to United States v. Ballard, 322 U.S. 78 , 64 S.Ct. 882 , 88 L.Ed. 1148 (1944), fails to provide any convincing support for its position. The Court held there that the Government may not inquire into the truth or validity of any particular religious belief, relying exclusively on the Free Exercise Clause of the First Amendment. As the opinion reveals, the defendants in that case did not even mount a challenge to the prosecution based on the Free Speech Clause. Ballard cannot, therefore, legitimately be relied on for the proposition that an author, forced by the Government to prove the truth of a book, has no recourse to the Free Speech Clause of the First Amendment.