# Amicus Curiae Brief — Butterworth v. Smith

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0512%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 624

## Text

eee eM rit e®

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

TS
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

ii

(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

18

18

24

38

42

43

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.,

24

35

12

16

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). «. « «© « « «

iv

(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,

39

(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).

vi

13

12,38

34

3,14,
15,24

31

11

34

(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
° 35
. 34
* 33
. 34
° 33

1
- 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

ix

(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

i0

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

11

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.

12

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).

13

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.

14

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

15

_ 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

16

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

17

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.

18

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

19

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

20

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.

21

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.

22

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

23

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.

24

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.

1.

The State baldly asserts that
failure to forbid witness disclosure
might “permit possible compromise of
complex and ongoing criminal
investigations." Brief for Petitioners

25

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,

26

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.

27

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

29

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).

30

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.

31

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.

32

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).

33

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) .

34

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

35

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

36

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.

37

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.
See also id. at 12, 14; Brief of State
of Ariz. at 2. Even accepting that
premise, however, the Florida statutes
under attack cannot survive the strict

scrutiny that is required by this
Court's established precedents. First,

38

the overbreadth of the statute is
illustrated by the facts of this case.
The investigations conducted by Smith
and by the grand jury involved possible
corruption among public officials in
Charlotte County.‘ Under these
circumstances, the public's right to
know is at its zenith and the
reputational interest of the officials
involved is correspondingly diminished.
See Landmark Communications, 435 U.S. at
841; Gertz v. Robert Welch, Inc., 418
U.S. 323, 344-45 (1974); New York Times,
376 U.S. at 273. See also First
Amendment Coalition v. Judicial Inquiry

14yMoreover, there was testimony
suggesting that this was one of the most
common uses of grand juries which are
now only rarely employed in Florida.
See Deposition of Assistant State

Atto Charles Warren Goodwin 14-16;
Transcr 15-16 (testimony of Chief
Assistant State Attorney W. Christian
Hoyer).

39

& Review Bd., 784 F.2d 467, 476 (3d Cir.
1986) (en banc).

Second, the permanent silencing of
a witness may prevent that witness from
vindicating his or her own reputation.
For example, a witness compelled to
testify regarding minor matters, e.g., a
particular bookkeeping method, may be
stigmatized when it becomes known that
he or she testified to the grand jury.
Yet, § 905.27 prevents that witness from
Clearing his name by explaining that he
had no role in the crime being
investigated. The gag placed in his
mouth by the statute prevents him from
correcting any - mistaken impression.
Similarly, the statute prevents a target
of an investigation who later ib not
indicted from clearing his name by
telling his own story. This is a

40

curious means of "protecting"
reputations.

Finally, the permanent nature of
this statutory muzzle means that a
witness cannot discuss his oor her
testimony even years after the accused
has been tried and convicted, unless the
witness' testimony “is or has been
disclosed in a court proceeding." Fla.
Stat. § 905.27(2). Nor could a
newspaper report it. Jd. Respondents
do not identify any reputational
interest preserved under those
circumstances, and none is readily
apparent.

Therefore, Florida's permanent and
complete ban on witnesses' disclosing
their own testimony cannot stand. The
Eleventh Circuit correctly excised the
unconstitutional portion of the
challenged statute.

41

CONCLUSION
For the foregoing reasons, the
decision below should be affirmed.

New Orleans, IA 70118
(504) 865-5965, 865-5732

STEVEN R. SHAPIRO

American Civil Liberties
Union Foundation

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

JAMES K. GREEN
Green, Eisenberg & Cohen
250 Australian Avenue South
Clearlake Centre, Suite 1300
West Palm Beach, FL 33401
(407) 659-2009
The assistaice provided by Ken Levine,
Randy McKevitt, Aaron McGee, Philip
Drysdale, and George Oscar, law clerks
in the Appellate Advocacy Program, is

gratefully acknowledged. Dec. 1989.

42

Fed. Rule Crim. Proc. 6(e)(2) and
Advisory Comm. Note 2 (1989)
(specifically allowing witness
disclosure); Ala. Code §§ 12-16-2111, -
214, -215 (1986) (mak‘ng witnesses
liable for disclosure only before a
Gefendant is indicted or arrested);
Alaska Crim. R. 6(h) (1975) (following
Federal Rule); American Samoa Code Ann.
§ 46.0501 (1981) (adopting federal
rule); Ark. Stat. Ann. § 16-85-5114
(1987) (no reference to witness
secrecy); Cal. Penal Code §§ 924-924.2
(Deering 1971 & Supp. 1989) (no
reference to witness secrecy); Colo.
Rules Crim. Proc. 6.2, 6.3 (1981) (oath
of witness secrecy continues “until a
grand jury report is issued dealing with
the investigation"); Conn. Gen. Stat.
§ 54-45a (1989) (no reference to witness

43

secrecy); Del. Code Ann. tit. 11, § 1273
(1987) (addressing only public servants
with intent to disclose); D.C. Court
Rules Ann. 6(e) (1989) (mirroring
Federal Rule); Ga. Code Ann. § 15-12-68
(1985 & Supp. 1989) (no reference to
witness secrecy); Guam Crim. Proc. Code
§ 50.34 (1977 & Supp. 1980) (no
reference to witness secrecy); Haw.
Rules Penal Proc. 6(e) (1977) (expressly
relieving witnesses of secrecy
obligations); Idaho Crim. Rules, Rule
6(e) (1987) (no reference to witness
secrecy); Ill. Rev. Stat. ch. 38, para.
112-6 (Supp. 1989) (similar to Federal
Rule); Iowa Code § 813.2, Rule 3(d)
(1986 & Supp. 1989) (no reference to
witness secrecy); Kan. Stat. Ann. § 22-
3012 (1988) (expressly relieving
witnesses); Me. Rev. Stat. Ann. tit. 15,
§ 1252 (1984) (not requiring witnesses

44

to take oath of secrecy); Md. Cts. &
Jud. Proc. Code Ann. § 8-213 (1984) (no
reference to witness secrecy); Mass.
Rules Crim. Pro. 5(d) (1979 & Supp.
1989) (expressly relieving witnesses) ;
Minn. Rules of Crim. Proc. 18.08 (1979 &
Supp. 1989) (relying mostly upon Federal
Rule); Mont. Code Ann. § 46-11-317
(1989) (expressly relieving witnesses) ;
Neb. Rev. Stat. §§ 29-1404 to 29-1415
(1985) (no reference to witness
secrecy); N.H. Rev. Stat. Ann. § 600:3 &
74 (1986) (no reference to witness
secrecy); N.J. Rev. Stat. § 2A:73B-3
(Supp. 1989) (persons liable only if
disclosure constitutes tortious
conduct), N.J. Court Rule 3:6-7
(excluding witnesses from an oath of
secrecy); N.M. Stat. Ann. § 316-6
(1978) (no reference to witness
secrecy); N.Y. Penal Law § 215.70

45

(McKinney 1988 & Supp. 1989) (exempting
witnesses from liability); N.D. Cent.

Code § 29-10.1-30 (1989) (silencing
witnesses “until an indictment is filed
and the accused person is in custody");
Okla. Stat. tit. 21, §§ 582, 583 (1983)
(no reference to witness secrecy); Or.
Rev. Stat. §§ 132.100, 132.220 (1987)
(no reference to witness secrecy); Pa.
Rules Crim. Pro. Rules 256-257, 259
(1989) (no reference to witness
secrecy); R.I. Rules Crim. Proc. 6/(e)
(1989) (similar to Federal Rule); §&.D.
Codified Laws Ann. § 23A-5-16 (1979 &
Supp. 1987) (witnesses obligated only
until accused is in custody); Tenn.
Rules Crim. Proc. 6(a4)(1) (1988) (no
reference to witness secrecy); Vt. Rules
Cria. Proc. 6(f) (1974) (based on
Federal Rule); Va. Code Rule 3A:5(b)
(1989) (stating that "*[n)o obligation of

46

secrecy may be imposed upon any
person"); V.I. Code Ann. tit. 5, sec.
6(e) (Supp. 1988) (adopting Federal
Rule); W. Va. Rules Crim. Proc. 6(e) (2)
(1989) (mirroring Federal Rule); Wis.
Stat. § 756.20 (1981) (no reference to
witness secrecy); Wyo. Stat. § 7-5-308
(1989) (expressly relieving witnesses).
South Carolina has no statutory law

which addresses grand jury secrecy.

47

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0512%3A11. Public record. Not legal advice.