# In Re Grand Jury Matter, Antoni Gronowicz > Court of Appeals for the Third Circuit · June 24, 1985 · 764 F.2d 983 URL: https://www.frixlaw.com/law-library/cases/9473617 ## Case - **Full name:** In Re GRAND JURY MATTER, Antoni GRONOWICZ, Appellant - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 24, 1985 - **Citations:** 764 F.2d 983; 18 Fed. R. Serv. 239; 11 Media L. Rep. (BNA) 2249; 54 U.S.L.W. 2029; 1985 U.S. App. LEXIS 20125 - **Precedential status:** Published - **Opinion:** Dissent by Sloviter - **Judges:** Gibbons, Garth, Becker, Hunter, Higginbotham, Sloviter - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473617 ## How later opinions describe it (automated extraction) - holding that there is “[n]o distinction having any first amendment significance” between criminal libel and civil libel or criminal fraud and civil fraud, for libelous or fraudulent speech both have no First Amendment protection in either the civil or criminal context ## Opinion text SLOVITER, Circuit Judge, dissenting. I join in Judge Hunter’s dissent and, as a secondary position, concur in Part II of Judge Higginbotham’s dissenting opinion asserting that the government’s Schofield submissions were inadequate to overcome Gronowicz’ journalists’ privilege. I write separately only to express my profound concern about the First Amendment values that the court has undermined by its decision today. I sense an unarticulated unease in the opinions of most of my colleagues, somewhat like the bogeyman a frightened child is unwilling to describe for fear that it will then assume the mantle of reality. But if the emperor has no clothes, we should say so. The holding of this court opens the way for use of the uniquely powerful weapon of a grand jury investigation to inhibit publication of books because of their content not only by an unscrupulous prosecutor but, what is more dangerous, by one who is imbued with a sense of zealous righteousness. This case is not governed by any of the authorities relied on by the majority. This is not, as one of my colleagues suggested at oral argument, a publication from “a mail order house advertispng] a book saying that if you buy it and read it, you will be able to lose weight without diet, without exercise and without medicine.” Transcript of oral argument at 6. It has not been denied that at issue is a matter of legitimate public interest. Nor is this like a prosecution for criminal libel which, as the Supreme Court has noted, has virtually disappeared. See Garrison v. Louisiana, 379 U.S. 64, 69 , 85 S.Ct. 209, 213 , 13 L.Ed.2d 125 (1964). The majority, while citing to that portion of Garrison that held that truth, unlike calculated falsehood, is an absolute defense to such a prosecution, has failed to point out that in the same opinion Justice Brennan, writing for the Court with no dissent, strongly *1001 suggested that criminal libel must be limited to speech that has a clear and present danger of leading to public disorder. Id. at 70 , 85 S.Ct. at 213 . He approvingly referred to the absence of any criminal libel statute in the then pending draft of the Model Penal Code of the American Law Institute, and to the Reporters’ explanation eliminating such a statute because “ [usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community’s sense of ‘security’.” Id. at 70 , 85 S.Ct. at 213 , quoting Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments at 44. God’s Broker has not been alleged to be “speech calculated to cause breaches of the peace.” The majority’s suggestion that the Court’s holding in Garrison that defenses available in civil libel suits are also available in criminal libel prosecutions was thereby a rejection of any distinction between civil and criminal libel actions is not only wrong but may be dangerous if it forebodes an approval of criminal libel prosecutions, now in general disrepute. I am not as disturbed as are some of my colleagues that lurking behind the book is the possibility of fraud. If either the publisher or the putative movie producer has in fact been defrauded, there is ample opportunity for them to recover in civil litigation. I'am distressed because the majority fails to recognize the quintessential difference between the issue here and that presented in the civil libel cases from which it freely borrows — and that is the role played by the government and its ability to control, and even manipulate, the grand jury. The following colloquy took place during the oral argument between this writer and the United States Attorney: THE COURT: ... Suppose in the 1970’s, two authors went to a publisher and they said, “We have some information from somebody we’ll call Deep Throat in the government who is feeding us — who has fed us with information about what’s happening in the White House,” ... could the administration then say that’s false and we are going to have a Grand Jury investigation to ascertain the truth or falsity of that central issue even before the book came out or if the book came out, even thereafter? Is the analogy apt and would you answer? MR. DENNIS: I think the analogy is apt and I answer it this way: The power to investigate and the power to prosecute is the power to intimidate, it’s the power to disrupt and it is certainly the power, perhaps, to intimidate an author from not publishing a book. I think that it is always a risk that a government agency could abuse its authority for purposes of expressing ideas and thoughts that might be dangerous to the current administration or that might displease government officials. THE COURT: ... And if there is this risk that you say there may be by government in power, where does the First Amendment protect an individual? MR. DENNIS: I think that the first line of protection does come under the challenge on the basis of Grand Jury abuse and none was found here. There is simply no basis for the Court to conclude and the district court did not find and the panel in this case did not find that the motive for this investigation had anything to do with offending the government or government officials with regard to the contents of that book. Transcript of Oral Argument at 21-23. The investigation that served as the focus of the court’s questions was that by Woodward and Bernstein into the Watergate affair, an investigation that contributed to the resignation of a President. Gro-nowicz lists the following as other possible targets of grand jury investigation for offending “the sensibilities of the powerful.” Appellant’s brief at 7-8: “Rachel Carson’s Silent Spring; Seymour Hersh’s Kissinger; Ralph Nader’s Unsafe at Any Speed; William Shawcross’s Sideshow: Kissinger, Nixon and the Destruction of Cambodia; [and Walter & Miriam] Schneir’s book on the Rosenberg case, Invitation to an In *1002 quest". Searching somewhat deeper into history, one could add Charles Darwin’s Origin of the Species and the works of Galileo, all of which were seen in their time as threatening the views of the established orthodoxy. It is unrealistic to believe that “ideas, opinion, viewpoints, and beliefs,” which Judge Higginbotham would protect from prosecution are going to be published without an accompanying assertion of “statements of fact”, the bricks on which the edifice of ideas must be constructed. If such “facts”, whether they concern the descendency of humans from apes, the motion of the earth around the sun, or the unlawful behavior of all the president’s men, can be the proper subject of a criminal investigation into truth, then the First Amendment is ephemeral protection for the ideas and opinions on which they are based. The majority, the concurrers, and Judge Higginbotham in his dissent all adopt the government’s position that the limit of the protection against the inhibiting effect of criminal investigation into writings of public interest is the availability of a challenge that the grand jury inquiry or its subpoena is not undertaken to further a proper grand jury investigation. I am unwilling to place all my reliance on a reed of such an evanescent quality since regrettably there js, as yet, no precedent to support Judge Becker’s position that the government may have a heavier burden to meet the Schofield II requirement in such a case. The absence of any precedent as direct authority to support quashing the subpoena and reversing the contempt citation is telling evidence that no earlier government in this country has used the criminal process to inquire into the validity of a book, pamphlet, or other writing that deals with an important public issue. Even were the assertions in Gronowicz’s book inaccurate, and even were it to be found that they were deliberately so, an issue on which I have no opinion, I would hold that a criminal prosecution focusing on the truth of the contents would be incompatible with the First Amendment. We have constructed an elaborate system in our criminal law that is designed to protect one innocent defendant, even at the expense of leaving numerous guilty persons go free. See 4 Blackstone, Commentaries *358. Is it not at least equally important to relegate one potentially fraudulent book to the remedy provided by the civil law in order to insure that there is no inhibition in the future on speech concerning public affairs? After all, “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. at 74-75 , 85 S.Ct. at 216 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473617. Public record. Not legal advice.