Amicus Curiae Brief — Butterworth v. Smith

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1989

NO. JEC 14

-pi4 F. SPANIOL, JR.

ak + —————

In the

Supreme Court of the United States

October Term, 1989

ROBERT A. BUTTERWORTH, and

T. EDWARD AUSTIN,

Petitioners,

Vv.

MICHAEL SMITH,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE

AMERICAN CIVIL LIBERTIES UNION

AND ACLU OF FLORIDA

IN SUPPORT OF RESPONDENT

M. DAVID GELFAND

(Counsel of Record)

TERRY E. ALLBRITTON

STEVEN R. SHAPIRO Appellate Advocacy

American Civil Program

Liberties Union Tulane Law School

Foundation 6801 Freret Street

132 West 43rd St. New Orleans, LA 70118

New York, NY 10036 (504) 865-5965, 5732

(212) 944-9800

JAMES K. GREEN

Green, Eisenberg &

Cohen

250 Australian

Avenue South

West Palm Beach, FL

(407) 659-2009

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

——_—— ee eee ee oe ee

ee ee oe ee ee

TABLE OF CONTENTS

CR ee ee ee ee ee ee |

Table of Authorities. ........ iv

Interest of Amici Curiae. ...... 1

Summary of Argument ......+. ++ 2

ABGUMGME.e «© es se eee eee eeesee 8

I. FLORIDA'S PERMANENT BAN UPON

II.

SPEECH AND WRITING INFRINGES

UPON THE SUBSTANTIAL FIRST

AMENDMENT RIGHTS OF GRAND JURY

WITNESSES AND THE PRESS. .... 3

THIS STATUTORY BAN IS SUBJECT

TO THE MOST EXACTING SCRUTINY

BECAUSE IT IS AN OVERBROAD

RESTRICTION UPON THE CONTENT

OP SPEECH. . «© © © © © © «© © «© « 1

A. Strict Scrutiny is the

Correct Standard for

Evaluating this Blanket

MOR ececseeeseecs ce co 1

B. Seattle Times and Similar

Cases are Inapposite, as

They Involved More Delimited

Restrictions in a

Specialized Context .... 14

(continued)

III. FLORIDA DOES NOT HAVE A

COMPELLING INTEREST IN

PERMANENTLY SILENCING ALL

GRAND JURY WITNESSES, AND

IT HAS NOT PURSUED ITS

ASSERTED INTERESTS BY THE

LEAST RESTRICTIVE MEANS. .

A. This Statute Cannot be

Justified by Appeals to

Ancient or Modern History

B. Florida's Interests in

"Grand Jury Integrity"

Can be Protected by Less

Restrictive Means ..

c. Protection of Reputations

Cannot Be Considered a

Compelling Justification

for This Statute. ..

Conclus ion > * >. >. >. > > > > - >.

APPENDIX - Less Restrictive

Statutes and Rules .

iii

TABLE OF AUTHORITIES

Cases

Board of Trustees of State

Univ. of N.Y. v. Fox,

109 S.Ct. 3028 (1989). .....

Boos v. Barry,

108 S.Ct. 1157 (1988). ...

Bridges v. California,

314 U.S. 252 (1941). ......

Burkholder v. Alaska,

491 P.2d 754 (Alaska 1971)...

City Council of Los Angeles

v. Taxpayers for Vincent, ....

466 U.S. 789 (1984)

City of Houston v. Hill,

482 U.S. 451 (1987).......

Doe v. Gonzalez,

723 F.Supp. 690, 1988 WL 167407

(S.D. Fla. 1988), aff'd,

886 F.2d 1323 (1ith Cir. 1989) .

Douglas Oil Co. v. Petrol Stops

Northwest,

441 U.S. 211 (1979). ......

First Amendment Coalition v.

Judicial Inquiry & Review Bd.,

784 F.2d 467 (3d Cir. 1986). . .12,39

Frisby v. Schultz,

108 S.Ct. 2495 (1988). .....

Gertz v. Robert Welch, Inc.,

416 U.S. 323 (1974). «. « «© « « «

(continued)

Cases Page

Hustler Magazine v. Falwell,

108 S.Ct. 876 (1988) .... . «37,38

In re Doe,

537 F.Supp. 1038 (D.R.I. 1982) . 27

In re Grand Jury Subpoena,

574 F.Supp. 85 (S.D.N.Y. 1983) . 27

In re Investigation Before the

April 1975 Grand Jury,

531 F.2d 600 (D.C. Cir. 1976). . 27

In re Russo,

53 F.R.D. 564 (C.D. Cal. 1971) .20,21,

22,30

In re Sealed Motion,

880 F.2d 1367 (D.C. Cir. 1989) . 17

In re Vescovo Special Grand Jury,

473 F.Supp. 1335 (C.D. Cal.

1979) >. . >. . > . 7 . . . * . . . 27

Landmark Communications

v. Virginia,

on Gua. eee CNUs tc tl wt OM,

Minneapolis Star v. Minnesota,

460 U.S. 575 (1983). .~. «© «© « « « 11

Minton v. State,

113 So. 2d 361 (Fla. 1959)... 17

New York Times Co. v. Sullivan,

376 U.S. 254 (1964). . . « « « «13,38,

(continued)

Cases

Pennekamp v. Florida,

328 U.S. 331 (1946). ....2.e-.

People v. Gomez,

33 PR. 179 (3924) . « «© © © © «

Posadas de Puerto Rico Assocs.

v. Tourism Co. of Puerto Rico,

478 U.S. 328 (1986). ......

Providence Journal Co. v. Newton,

723 F.Supp. 846, 1989 WL 125992

(D.R.I. 1989). * * . . . 7 . + .

Rippy v. State,

550 S.W.2d 636 (Tenn. 1977)...

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984) . . .«. «© « « «

Shelby v. Sixth Judicial

District Court,

82 Nev. 204, 414 P.2d

DS a eg ww 6k ee

Smith v. Butterworth,

866 F.2d 1318 (llth Cir. 1989) .

Smith v. Butterworth,

678 F.Supp. 1552 (M.D.

ame Beeee ee tee ee eee ee

Smith v. Daily Mail,

443 U.S. 97 (1979) . . «© «© «© « «

State v. Faux,

9 Utah 350, 345 P.2d 186 (1959).

12,38

3,14,

15,24

(continued)

Cases

Texas v. Johnson,

109 S.Ct. 2533 (1989). ....

The Florida Star v. B.J.F.,

109 S.Ct. 2603 (1989). ....

United States v. Badger

Paper Mills, Inc.,

243 F.Supp. 443 (D.Wis. 1965).

United States v. Ben

Grunstein & Sons Co.,

137 F.Supp. 197 (D.N.J. 1955).

United States v. General

Motors Corp.,

352 F.Supp. 1071 (E.D.

as Pees «6 « © ¢ 6 © 8 oe

United States v. Procter

& Gamble Co.,

356 U.S. 677 (1958). .....

Ward v. Rock Against Racisn,

109 S.Ct. 2746 (1989). ....

Wood v. Georgia,

370 U.S. 375 (1962). « « © « «

Statutes

Ala. Code §§ 12-16-211

to -215 (1986) . . . 7 . . . . >

Conn. Gen. Stat. § 54-45a (1989)

vii

Page

. 35

° 32

° 34

>. 34

. 34

-17,18

>. 4

-13,38

° 34

° 33

(continued)

Statutes

Fla. Stat. § 837.011 - .060

(1988) . . > . > >. . . . . .

Fla. Stat. § 838.015 (1988).

Fla. Stat. § 838.016 (1988).

Fla. Stat. § 838.021 (1988).

Fla. Stat. § 905.27 (1987) .

Fla. Stat. § 914.22 (1988) .

Fla. Stat. § 914.23 (1988) .

N.D. Cent. Code § 29-10.1-30

(1989) . . . > > >. . 7 . .

N.J. Rev. Stat. § 2A:73B-3

(Supp. 1989). . . .«. « « « -«

S.D. Codified Laws Ann.

§ 23A-5-16 (1979 & Supp. 1987).

Wisc. Stat. § 756.19 (1981).

Rules

Supreme Court Rule 36.2...

Federal Rules of

Criminal Procedure 6(e) . .

Colo. Crim. Proc.

Rules 6.2, 6.3 (1981) ...

viii

Page

° 35

. 35

° 35

*. 35

° 35

. 34

* 33

. 34

° 33

- 26,30

: 34

(continued)

Rules Page

N.J. Court Rule 3:6-7 (1988) ... 33

W. Va. Rules Crim. Proc.

Rule 6(e)(2) (1989) ....+.. . 33

Additional Statutes and Rules

of States and American Territories

Concerning Grand Juries. . . . .APPENDIX

Treatises, Articles, & Reports

S. BEALE & W. BRYSON, GRAND JURY

LAW AND PRACTICE (1986) ... . .19,21

Brown, The Witness and Grand Jury

Secrecy, 11 Am.J.Crim.L. 169

(1983). a _ > > > o . _ _ > >. >. 26,30

CLARK, THE GRAND JURY (1975) . . .19,21

FRANKEL & NAFTALIS, THE GRAND JURY

(1977) . . . . >. >. >. o . . . >. >. . 20

’

, Before Subcommittee on

Immigration, Citizenship, and

International Law of House

Committee on Judiciary, 95th

Cong., ist Sess. (1977)...... 29

Groot, The Jury of Presentment

Before 1215, 26 Am. J. of _—

Hist. 1 (1982) ...... ee 20

(continued)

Treatises, Articles, & Reports Page

L. LEVY, ORIGINS OF THE FIFTH

AMENDMENT (1968) . . . + +6 «© «© « « 19

Reports of Judicial Conference,

Reports of the Administrative

Office, U.S. Courts (1988) . . . .29,30

Schwartz, Demythologizing the

’

10 Am. Crim. L.Rev. 701 (1972). . 20

Winters, A Study of Rules 6, 7, 8

and 9 of the Federal Rules of

Criminal Procedure, 25 Or. L.

Rev. 10 (1945) > _ _ > > > * > > -26,27

R. YOUNGER, THE PEOPLE'S PANEL:

THE GRAND JURY IN THE UNITED

STATES, 1634-1941 (1963) . .. . .19,21

INTEREST OF AMICI CURIAE*

The American Civil Liberties Union

is a nationwide, nonpartisan

organization of over 275,000 members

dedicated to the preservation and

advancement of fundamental

constitutional rights. The ACW of

Florida is the Florida affiliate of the

ACLU. It. has a specific interest in

this case, which arose within its

jurisdiction.

The ACLU and its affiliates are

committed to the protection of First

Amendment rights of free speech and free

press, having made the preservation of

these rights a focus of their

activities, in a number of forums, since

lpursuant to Rule 36.2 of the Rules of

this Court, the parties' letters of

consent to participation of amici have

been filed with the Clerk of Court;

additional copies of those letters

accompany this brief.

1920. This case, therefore, involves a

matter of direct organizational interest

to the ACLU.

SUMMARY OF ARGUMENT

The Florida statute challenged in

this case is substantially overbroad

because it is a total and permanent ban

upon any speech or writing about the

"content, gist, or import" of any

testimony by any grand jury witness.

The statute's extremely limited

exceptions provide no protection for the

substantial free speech rights of

witnesses or for the rights of a free

press.

The appropriate standard for

testing this blanket ban upon free

speech is articulated in Landmark

Communications, Inc. v. Virginia, 435

U.S. 829 (1978), and other’ strict

scrutiny cases. The test developed in

Seattle Times Co. v. Rhinehart, 467 U.S.

20 (1984), and similar cases, applies

only in the context of specific judicial

orders in particular cases.

Here, the statute does not pursue

the State's asserted interests by the

least restrictive means. This is shown

by considering the facts of this case,

other likely applications of the Florida

statute, and the contrasting practice

and experiences of most other states and

of the federal systen.

ARGUMENT

I. FLORIDA'S PERMANENT BAN UPON SPEECH

AND WRITING INFRINGES UPON THE

SUBSTANTIAL FIRST AMENDMENT RIGHTS OF

GRAND JURY WITNESSES AND THE PRESS.

Florida's statute prohibits a

“witness examined before the grand

jury," from disclosing his or her

"testimony" or “other evidence," except

when specifically required by a court

for subsequent judicial proceedings or

required by the witness' attorney. Fla.

Stat. § 905.27(1)-(3) (1987).% Indeed,

it constitutes a misdemeanor of the

first degree and criminal contempt for

the witness or “any person" to discuss

or write in any manner about "the

content, gist or import" of § such

testimony, unless and until it has been

disclosed in open court. Id. at

§ 905.27(2), (4)-(5).

The Eleventh Circuit correctly

concluded that such a complete and

perpetual restriction upon freedom of

2a plain reading of the statute reveals

that the prohibition is not based on the

"time, place, or manner" of the speech.

, 109 S.Ct.

Ward vy. Rock Against Racism

2746, 2753 (1989). See Board of

Trustees of State Univ. of N.Y. v. Fox,

109 S.Ct. 3028, 3033 (1989). Accord

Frisby v. Schultz, 108 S.Ct. 2495

(1988). Rather, it is a total ban on

the content of truthful speech, which

cannot be revealed at any time, in any

place, or in any manner.

speech and press is not needed to

achieve either the general or the

specific goals asserted by the State.

See part III, below. That Court

employed the statute's savings clause to

sever the phrase “any other person" from

§ 905.27(1), thereby excising only the

unconstitutional aspect of the statute.

See Smith v. Butterworth, 866 F.2d 1318,

1321 (l1ith Cir. 1989). This carefully

delimited ruling vindicated the First

Amendment rights of witnesses without

jeopardizing any legitimate need for

grand jury secrecy. The Eleventh

Circuit left in place the statutory

secrecy requirement for grand jurors,

state attorneys, and support personnel.

By removing only the _ statute's

blanket ban upon witness speech, the

Eleventh Circuit also allowed a small

ray of public scrutiny to shine upon an

unnecessarily shrouded public

institution -- the grand jury. Prior to

the Court's order, the statute

prohibited anyone to draw upon his or

her own experience as a witness to

prepare a treatise or manual describing

general grand jury procedures, to

counsel his or her other clients on the

rigors of testimony in a different case,

or to pen an editorial criticizing a

prosecutor's misuse of grand jury

proceedings.

Moreover, this overbroad statute

operates to restrict forever witnesses’

First Amendment rights to free speech

and rights of the free press, regardless

of the need in any particular case for

perpetual secrecy. Witnesses are

prohibited from revealing their own

testimony years after a grand jury's

investigation has been concluded. The

only exceptions in the statute place the

burden upon the citizen/witness, who

must seek judicial permission to speak

and can do so only under very limited

circumstances. This approach, lauded by

Petitioners and their Amici, actually

reverses the established constitutional

pattern, which rightly places the burden

upon the government censor to justify

any suppression of speech.

In defense of the statute,

Petitioners and their Amici assert that

its broad language only bans’ speech

regarding matters the witness learns

about for the first time during his or

her participation in the confidential

grand jury proceedings. See Brief for

Petitioners at 20 n.8; Brief of Florida

Prosecuting Attorneys Ass'n at 10-11;

Brief of State of Arizona at 5. The

statutory language cannot be so easily

limited. In this very case, for

example, the statute has prevented a

reporter from disseminating what he

himself uncovered regarding alleged

local political corruption, long before

he was subpoenaed and required to

testify before the grand jury.

Nonetheless, Smith was silenced forever

as to the "content, gist or import" of

his wide-ranging testimony regarding his

Own research after the grand jury

returned a no true bill. Because of the

statute, he can never discuss that

information, much less publish it.

Section 905.27 could have an even

more egregious effect upon freedom of

speech and press. It would enable a

state attorney to squelch an ongoing

press investigation of his political

allies simply by subpoenaing the

reporters involved and grilling them on

all aspects of their research. Thus, a

reporter could be forced to tell the

grand jury everything he has learned in

months or years of research. Then, if

the grand jury failed to indict, the

reporter/witness would be silenced

forever regarding the material developed

in his own investigations. Nor could he

ever share any of the material covered

in his testimony with other members of

his news organization. See Fla. Stat.

§ 905.27(2). Unless members of the news

media were willing to risk criminal

sanctions, the press would be rendered a

toothless watchdog of the public

interest.

II. THIS STATUTORY BAN IS SUBJECT TO THE

MOST EXACTING SCRUTINY BECAUSE IT IS AN

OVERBROAD RESTRICTION UPON THE CONTENT

OF SPEECH.

A. Strict Scrutiny is the Correct

Standard for Evaluating This

Blanket Ban.

To justify a content-based ban on

political speech, a state must show both

that the "regulation is necessary to

serve a compelling state interest and

that it is narrowly drawn to achieve

that end." Boos v. Barry, 108 S.Ct.

1157, 1164 (1988); Landmark

Communications, Inc. v. Virginia, 435

U.S. 829 (1978).

As explained in part I, Florida's

permanent muzzle prohibits disclosure of

the "gist or import" of a witness' grand

jury testimony forever, except as

required by the judicial systen. Fla.

Stat. § 905.27(1), (2) (1987). Indeed,

Petitioners object to Mr. Smith's

truthful speech precisely because they

fear its content. See Boos, 108 S.Ct.

at 1164. Hence, they have subjected his

(and others') speech to a total and

permanent ban.

The Eleventh Circuit correctly

concluded that the proper standard for

testing such a blanket prohibition of

truthful speech is articulated in

Landmark Communications and Smith v.

Daily Mail, 443 U.S. 97 (1979). see

also Minneapolis Star v. Minnesota, 460

U.S. 575, 587 n.7 (1983). In fact,

§ 905.27(2) is remarkably similar to the

statute invalidated in Landmark

Communications, as both made it a crime

to communicate information regarding a

public investigative body, no matter how

that information was obtained.”

Strict scrutiny is especially

appropriate in this case because the

statute outlaws and chills “core speech"

lying at the very heart of the First

3a11 courts that have considered the

issue have rightly concluded that the

rationales of Landmark Communications

and similar precedents prohibit criminal

punishment of persons who file a

complaint with an investigative body and

then speak about their complaint during

the confidential investigation. See

Inquiry & Review Bd., 784 F.2d 467, 477-

79, 481 (3d Cir. 1986) (en banc); Doe v.

Gonzalez, 723 F.Supp. 690, 1988 WL

167407 (S.D. Fla. 1988), aff'd, 886 F.2d

1323 (11th Cir. 1989); Providence

Journal Co. v. Newton, 723 F.Supp. 846,

1989 WL 125992 (D.R.I. 1989). See also

Bridges _v. California, 314 U.S. 252

(1941) (speech by party during pendency

of lawsuit). It is noteworthy that

these cases invalidated even a temporary

ban on the speech of voluntary

participants during an ongoing

investigation. The instant case

involves the more extreme situation of a

witness who was compelled by subpoena to

testify to the investigative body and

then was silenced after the

investigation ended.

Amendment. * Hence, “‘'the substantive

evil must be extremely serious and the

degree of imminence extremely high

before utterances can be punished'."

Landmark Communications, 435 U.S. at

845, quoting Bridges v. California, 314

U.S. at 263. See also Wood v. Georgia,

370 6U~.S. 375, 384, 392-93 (1962);

Pennekamp v. Florida, 328 U.S. 331, 347

(1946) (requiring a "solidity of

evidence" to establish imminent danger).

‘petitioners have rightly abandoned

their mischaracterization of Smith's

proposed writings as "commercial"

speech, gee Pet. for Cert. at 8, but one

Amicus seems to persist in this error.

See Brief of State of Arizona at 6. In

fact, Smith did not "propose a

commercial transaction," Board of

Trustees of State Univ. of N.¥. v. Fox,

109 S.Ct. 3028, 3031 (1989). Instead,

he sought to engage in political speech

by writing about his testimony and about

the grand jury. See also Posadas de

Puerto Rico, 478 328 (1986); New

, 376 U.S.

U.S.

254, 265-66 (1964).

B. Seattle Times and Similar Cases

are Inapposite, as They Involved

More Delimited Restrictions in a

Specialized Context.

This case raises no issue of press

access to confidentia’ proceedings or

press exposure of secret government

information. Rather, it concerns a

permanent, blanket ban upon the speech

of all grand jury witnesses. Therefore,

Petitioners are simply incorrect to urge

this Court to apply here the standard

developed in Seattle Times Co. v.

Rhinehart, 467 U.S. 20 (1984). Seattle

Times addressed the constitutional

constraints upon specific, limited

protective orders tailored by a court to

prevent abuse of its discovery processes

in particular cases. That standard is

clearly inappropriate for the evaluation

of a blanket ban that patently silences

and chills protected speech.

Furthermore, the source and flow of

the information are radically different.

In Seattle Times, a litigant in a civil

suit was prevented from disseminating

private organization membership data,

developed by others, which the litigant

had obtained only through a pretrial

discovery order “that both granted him

access to [the}) information and placed

restraints on the way in which the

information might be used." 467 U.S. at

32.5

In the instant case, by contrast,

the statute forbids a witness ever to

discuss or use information that he

himself developed and possessed before

he was required to divulge it to the

Sthe protective order upheld in Seattle

Times had “no application except to

information gained by the defendants

through the use of the discovery

processes." 467 U.S. at 27 n.8 (quoting

_ grand jury. The witness is silenced

without any particularized examination

of potential detrimental effects. The

concern, therefore, is not a newspaper's

possible abuse of judicial orders.

Rather, the dangers created by Florida's

statute involve blanket government

silencing of witnesses and

monopolization of information developed

by private citizens.

Petitioners' citation of Douglas

Oil Co. v. Petro] Stops Northwest, 441

U.S. 211 (1979), is also misguided.

There, plaintiffs in a civil antitrust

suit sought the transcript of grand jury

proceedings that had led to the criminal

antitrust indictments of the defendants.

In the instant case, Smith does not seek

to obtain the testimony of any other

witnesses; nor does he seek a transcript

of the proceedings. Indeed, he does not

seek any information at all from the

grand jury, because he already has the

information. Smith simply wants to

disseminate his own research about local

political corruption, and relate an

account of his personal experiences,

without being subjected to criminal

prosecution. See In re Sealed Motion,

880 F.2d 1367, 1370 n.6 (D.C. Cir.

1989).

Similarly, in citing United States

v. Procter & Gamble Co., 356 U.S. 677

(1958), and Minton v. State, 113 So.2d

361 (Fla. 1959), petitioners miss the

mark. In those cases, criminal

defendants made an inadequate showing in

their attempts to obtain transcripts of

the grand jury testimony of other

witnesses. ® Again, Smith neither seeks

transcripts nor wishes to reveal aspects

of an ongoing criminal proceeding;

rather, he wishes only to remove the

permanent gag placed in his mouth the

moment the state attorney called him

into the grand jury roon.

III. FLORIDA DOES NOT HAVE A COMPELLING

INTEREST IN PERMANENTLY SILENCING ALL

GRAND JURY WITNESSES, AND IT HAS NOT

PURSUED ITS ASSERTED INTERESTS BY THE

LEAST RESTRICTIVE MEANS.

A. This Statute Cannot be

Justified by Appeals to Ancient or

Modern History.

In an attempt to justify their

restrictive statute, Petitioners and

their Amici repeatedly invoke the

®rhis Court, in Procter & Gamble, noted

that the defendant had another method of

obtaining the grand jury testimony of

the state's witness -- pretrial

discovery. Here, no means are permitted

for Smith to regain control over his

information; the State has silenced him

completely as to the "“yist" of his

testimony by the threat of criminal

prosecution.

ancient history of "grand jury secrecy,"

but they fail to analyze that history in

any detail. In fact, the scholarly

studies of the grand jury's history

reveal that it has not been a single,

static institution. Instead, the grand

jury has been an evolving institution

whose operation and procedures have

adapted over time to its changing

functions. See generally S. BEALE & W.

BRYSON, GRAND JURY LAW AND PRACTICE §§

1:02-1:09 (1986); CLARK, THE GRAND JURY

11-18 (1975); L. LEVY, ORIGINS OF THE

FIFTH AMENDMENT, ch. 1 (1968); R.

YOUNGER, THE PEOPLE'S PANEL: THE GRAND

JURY IN THE UNITED STATES, 1634-1941

(1963).

Though the roots of the English

grand jury system run to the mid-Twelfth

Century, or earlier, the practice of

hearing witnesses and deliberating in

private was not treated as an

established custom until approximately

the Seventeenth Century. See Groot, The

Jury of Presentment Before 1215, 26 An.

J. of Legal Hist. 1, 3 (1982); Schwartz,

Demythologizing the Historic Role of the

Grand Jury, 10 Am. Crim. L.Rev. 701, 717

(1972).

When placed within historical

context -- the prosecutions of Colledge

and Shaftesbury -- it becomes clear that

"the common law concept of grand jury

secrecy developed from a need to protect

the jurors and the accused from the

tyranny of the Crown. Secrecy insulated

the jurors from the pressures of" the

government to indict. In re Russo, 53

F.R.D. 564, 568 (C.D. Cal. 1971). See

also FRANKEL & NAFTALIS, THE GRAND JURY

9-10 (1977); Schwartz, supra, at 710-12.

Secrecy served much the same purpose

during the Colonial and Revolutionary

periods in our country. See Clark,

supra, at 16-17.’

"Over the years, as fear of the

oppressive power of the government has

subsided, the government prosecutor has

regained substantial influence over the

grand jury and, consequently, that

institution has lost much of its former

independence." In re Russo, 53 F.R.D.

at 569. Hence, it is not surprising

that rationales now asserted by Florida

to justify its Twentieth Century statute

are not derived from the common law

purpose of protecting grand jurors from

prosecutorial pressure and abuse.

Rather, Petitioners rely upon rationales

7Interestingly, some grand juries during

those periods widely publicized their

charges, activities, and reports as a

form of “patriotic propaganda." See

Beale & Bryson, supra, § 1:03 at 13;

Younger, supra, at 17-19.

for witness secrecy that are premised

upon perceived protection of the grand

jury proceedings from the accused.

Indeed, as noted in part I, above,

permanent secrecy in the modern context

may actually insulate the government

from a reporter/witness' investigation

of political corruption.

Nor has witness secrecy

historically been treated as an

essential or necessary element of the

secrecy of grand jury proceedings and

deliberations. Most states and federal

districts did not require witness

secrecy at the time the federal rules

went into effect in 1946. See In re

Russo, 53 F.R.D. at 570. Since that

time, even more states have abandoned or

narrowed rules requiring witness

secrecy. See part III B.1 and Appendix.

In fact, witness silence was not

considered an essential element of grand

jury secrecy even in Florida until the

1951 and 1971 amendments to its grand

jury statutes. The plethora of abstract

interests now asserted by Petitioners

appear nowhere in the language of

§ 905.27 or in the legislative history

of its amendments. Even if these modern

purposes could be regarded as_ the

Florida Legislature's actual purposes,

Petitioners fail to demonstrate how the

permanent muzzling of witnesses, with

all its attendant negative effects, is

narrowly tailored to further those ends.

See strict scrutiny cases cited in part

IIA, above.®

B. Florida's Interests in "Grand Jury

Integrity" Can be Protected by

Means That Are Less Restrictive of

Witnesses' First Amendment

Freedoms.

This Court has repeatedly insisted

that a statute, to be considered

"narrowly drawn," must target and

eliminate "no more than the exact source

of the ‘evil' it seeks to remedy."

Frisby v. Schultz, 108 S.Ct. 2495, 2502

(1988); City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789,

808-10 (1984). A total ban can be

considered narrowly tailored “only if

each activity within the proscription's

Sin fact, the statute does not satisfy

even the more lenient

standard preferred by Petitioners, as

its permanent limitation upon First

Amendment freedoms is “greater than is

necessary or essential to the protection

of the particular governmental interest

involved." 467 U.S. at 32.

scope is an appropriately targeted

evil." Frisby, 108 S.Ct. at 2502-03.

Florida seeks to protect’ the

integrity of its grand jury system by

keeping all proceedings eternally

secret. Hence, the statute does much

more than eliminate the exact source of

the perceived evil. In fact, § 905.27

is not the least restrictive means of

addressing either the general concerns

about “grand jury integrity” or the

specific interests now proffered by

Petitioners.

The State baldly asserts that

failure to forbid witness disclosure

might “permit possible compromise of

complex and ongoing criminal

investigations." Brief for Petitioners

at 21. Instead of the "solidity of

evidence" required by Landmark

Communications, Pennekamp, and Bridges,

Petitioners offer no evidence that this

is a real, imminent danger. Indeed,

actual experiences with less restrictive

disclosure rules in the federal grand

jury system and most states show the

contrary.

Since the Federal Rules of Criminal

Procedure went into effect in 1946,

witnesses testifying before federal

grand juries, including those empaneled

in Florida, have been free to choose to

disclose their testimony, even during an

investigation. See Fed.R.Cr.P. Rule

6(e); Notes of Advisory Comm. on Rules,

Note to Subdiv. (e), Note 2. See

generally Brown, The Witness and Grand

Jury Secrecy, 11 Am.J.Crim.L. 169, 175-

81 (1983); Winters, A Study of Rules 6,

7, 8, and 9 of the Federal Rules of

Criminal Procedure, 25 Or.L.Rev. 10, 15

(1945). This freedom to speak, which is

much greater than that permitted under

the Eleventh Circuit's ruling, has been

challenged and upheld. See In re

investigation Before the April 1975

Grand Jury, 531 F.2d 600, 607 n.11 (D.C.

Cir. 1976); In re Grand Jury Subpoena,

574 F.Supp. 85 (S.D.N.¥. 1983); In re

Doe, 537 F.Supp. 1038 (D.R.I. 1982); In

re __Vescovo Special Grand Jury, 473

F.Supp. 1335 (C.D. Cal. 1979).

In addition to the federal grand

jury system, fully 40 other American

jurisdictions have promulgated statutes

or rules which are less restrictive of

witness speech than § 905.27.% All of

9see Appendix, listing relevant

jurisdictions. See also note 12,

infra,

describing judicial limitations in

several states.

these grand jury systems have a similar

need for some degree of confidentiality;

nothing unique to Florida's system, and

certainly nothing in this recoma™”

demonstrates the need for a

substantially broader rule of witness

silence in that state. To the contrary,

Florida's assertion that future

investigations would be inhibited by any

narrower rule is simply unsupportable

given the federal experience and the

experiences of the vast majority of

other American states and territories.

See Brief of State of Arizona at 4

(conceding that alleged impact on future

grand jury proceedings “may be an

unprovable fact in this case").

The federal government's experience

is particularly instructive, as it uses

many more grand juries and conducts more

complex, ongoing investigations before

those grand juries than does the State

of Florida or, indeed, any state in the

nation. Not only do the federal rules

permit witnesses to reveal their own

grand jury testimony outside the grand

jury room, but the highest level of

federal officials have disclaimed any

prosecutorial need for a broad general

silencing of witnesses. See Grand Jury

Reform, Hearings on H.R. 94, Before

Subcommittee on Immigration,

Citizenship, and International Law of

House Committee on Judiciary, 95th

Cong., lst Sess. 729, 738 (1977)

(statement by Asst. Att'y Gen.

Civiletti, stressing iwpportance of

preserving free speech and press rights

of witnesses, while reporting that

23,000 indictments and 132 no-true bills

were issued by federal grand juries in

1976); see also Reports of Judicial

Conference, _____Reports of the

Administrative Office, U.S. Courts 24-

25, 406-07 (1988) (10,817 grand jury

sessions, with average of 3.58

defendants indicted per session in

1988).

In fact, the Rule 6(e)

"proscription upon the imposition of

secrecy obligations on witnesses has

remained intact for over 35 [now more

than 40) years. During this period, no

empirical evidence has suggested that

this breach in grand jury secrecy has in

any way interfered with the functioning

of the grand jury." Brown, supra, at

181 (emphasis added). See also Smith v.

Butterworth, 866 F.2d 1318, 1320 (lith

Cir. 1989); In re Russo, 53 F.R.D. 564,

570 (C.D. Cal. 1971).

Petitioners' assertion that the

severe strictures of § 905.27 are needed

to prevent Smith from revealing the

names of grand jurors need not detain

this Court long. First, § 905.27 does

not forbid a witness from revealing the

names of grand jurors. Second, as the

district court in this case noted, the

press and other interested persons in

Florida have access to the area just

outside the grand juryroom. See Smith

vy. Butterworth, 678 F.Supp. 1552, 1557

(M.D. Fla. 1988). Therefore, the

identity of Florida's grand jurors can

be readily ascertained by other means.

In short, this statute neither reflects

nor accomplishes the interest in grand

jury anonymity which Florida now asserts

as one of its principal justifications.

See The Florida Star v. B.J.F., 109

S.Ct. 2603 (1989) .7°

Under the Eleventh Circuit's

carefully crafted order, no witness is

required to reveal his or her testimony

publicly. If that order is affirmed,

any Florida grand jury witness would

still have the right to remain silent.

The records of the grand jury would

still be subject to the detailed secrecy

requirements now in place, and the State

could still authorize judges to order

silence from witnesses when the need for

their silence is shown by the actual

record of particular cases.

10Moreover, nothing in the complaint

(ge@@ Pet. App. at a-31) or in testimony

reflects a plan by Smith to disclose the

names of grand jurors.

Smith’s objection, and the ACIU’s

objection, is to Florida’s unusual

prohibition, which, jin al] cases,

forbids a witness to reveal the

“content, gist or import” of his or her

own testimony. The trend is clearly

away from such blanket, permanent

witness silence, even in the states that

Florida considers kindred spirits. of

the 16 states described as similar on

page 5 of Petitioners’ Brief, four have

abandoned Florida’s absolutist position

-- three by statute,*4, and one by

*“See Conn. Gen. Stat. § 54-45a (1989)

(making only the stenographer’s record

confidential); N.J. Court Rule 3:6-7

(1988) (requiring persons before the

grand jury other than witnesses to take

an oath of secrecy), N.J. Rev. Stat.

§ 2A:73B-3 (Supp. 1989) (disclosure

unlawful only if made “with the intent

to injure another”); W. Va. Rules Crin.

Proc. Rule 6(e)(2) (1989) (adopting

Federal Rule 6(e)(2) verbatim).

judicial interpretation. }?

Moreover, Florida has other laws

that specifically address the fears

Petitioners express here. Tampering

Shelby v. Sixth Judicial District

Court, 82 Nev. 204, 414 P.2d 942 (1966)

(secrecy of grand jury proceedings not

absolute; statute can be directed only

to jurors, not to witnesses).

This decision follows the pattern

of several other states, which allow

disclosure after the grand jury has been

discharged -- the very position taken in

the Eleventh cCircuit’s order in this

case. See, @.g., Ala. Code §§ 12-16-211

to -215 (1986); Colo. Crim. Proc. Rules

6.2, 6.3 (1981); N.D. Cent. Code § 29-

10.1-30 (1989); S.D. Codified Laws Ann.

§ 23A-5-16 (1979 & Supp. 1987);

, 491 P.2da 754, 755

(Alaska 1971);

Grunstein 46 Song Co., 137 F.Supp. 197

(D.N.J. 1955); People yv. Gomeg, 33 P.R.

179, 186 (1924); Bippy vy. State, 550

S.W.2d 636, 642 (Tenn. 1977); State vy.

Faux, 9 Utah 350, 345 P.2d 186, 187

(1959); United States—y. RedearFasar

Mills. Inc., 243 F.Supp. 443 (D.Wis.

1965) See also Appendix (detailed

listing of states with few restrictions

upon witnesses) .

with a witness or informant’ to

“influence the testimony of any person

in an official proceeding" is a felony

under Fla. Stat. § 914.22 (1988).

Retaliation against witnesses is a

felony under § 914.23 (1988). Perjury

and bribery are also unlawful. See Fla.

Stat. §§ 837.011-837.060, 838.015-

838.016, 838.021 (1988).

Nothing in the Eleventh Circuit's

decision prevents Florida from enforcing

these laws. Duplicative processes are

unnecessary when other specific statutes

fulfill the state's purpose by less

restrictive means. See, e.g., Texas v.

Johnson, 109 S.Ct. 2533, 2542 (1989);

‘City of Houston v. Hill, 482 U.S. 451,

462 n.10 (1987); see also Boos v. Barry,

108 S.Ct. 1157, 1166-67 (1988).

Furthermore, the Eleventh Circuit

carefully limited its decision to allow

witness disclosure only after the

conclusion of the grand jury session.

The court recognized that once the

investigation has been concluded and

indictments issued, the revelation by a

witness of his own testimony would come

too late for the defendant to flee. The

evidence that the grand jury determined

it needed would already have been

gathered and considered. Moreover, if

that were not true in a particular case,

the State could authorize courts to

issue specific, time-limited gag orders

based upon a proper showing. As many

jurisdictions have determined, once an

indictment has issued, a witness’

revelation of his own testimony does not

impair the state's normal procedures in

any way. See footnote 12, supra. }°

4. Preventing “Sensational”

Reporting is a Baseless Concern and

Inappropriate State Interest.

Petitioners also assert that

"sensational" reporting regarding grand

jury proceedings may take place. This

Claim is totally without foundation on

this Record. Furthermore, no such

experiences in the federal system, other

states, or Florida are even mentioned.

Even if unpleasant reporting were a

possible risk, this Court has repeatedly

ruled that a state has no legitimate

interest in suppressing writings about

public institutions or matters of public

concern, even if the writings are

Gramatic, disrespectful, vehement, or

slanted. See, ¢.g., Hustler Magazine v.

13as the grand jury did not indict in

the instant case, the asserted risk of

oe ay obviously has no application

ere.

Falwell, 108 S.Ct. 876, 882 (1988);

Landmark Communications, 435 U.S. 829,

840-42 (1978); New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964); Wood

v. Georgia, 370 U.S. 375, 389 (1962).

See generally Providence Journal Co. v.

Newton, 723 F.Supp. 846, 1989 WL 125992

(D.R.I. 1989) (applying these and

related cases in an analogous context).

c. Protection of Reputations

Cannot Be Considered a Compelling

Justification for This Statute.

Petitioners cite “[p]rotecting the

identity of the innocent accused" as

“one of the most compelling reasons for

secrecy." Brief for Petitioners at 9.