# Amicus Curiae Brief — Butterworth v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0512%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 494 U.S. 624 ## Text Supreme Court, U.S. FOR ARGUMENTD on FJ] LED ) | 18 1989 No. 88-1993 - bec JOSEPH F. SPANIOL, JR. ¢ K IN THE Supreme Court of the United States October Term, 1989 ROBERT A. BUTTERWORTH, JR. Attorney General of the State of Florida, and T. EDWARD AUSTIN, JR. as State Attorney to the Charlotte County, Florida Special Grand Jury, Petitioners, Vv MICHAEL SMITH, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF OF AMICI CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, AMERICAN SOCIETY OF NEWSPAPER EDITORS, NATIONAL ASSOCIATION OF BROADCASTERS, NATIONAL NEWSPAPER ASSOCIATION, NATIONAL PRESS CLUB, NEWSLETTER ASSOCIATION, RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, AND SOCIETY OF PROFESSIONAL JOURNALISTS IN SUPPORT OF RESPONDENT MICHAEL SMITH Jane E. Kirtley (Counsel of Record) Robert S. Becker The Reporters Committee For Freedom of the Press Suite 504 1735 Eye Street, N.W. Washington, D.C. 20006 (202) 466-6313 December 18, 1989 (Attorneys for Amici Curae) (List of counsel continued on inside cover) CASILLAS PRESS INC. 1717 K STREET NW WASHINGTON DC 20036 — 223-1220 \" , ¢ , Wwe W. Terry Maguire Claudia James American Newspaper Publishers ' be P.O. Bow 17407 Dulles Airport Washington, D.C. 20041 Richard M. Schmidt, Jr. Cohn & Marks 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Attorney for American Society of Newspaper Editors Henry L. Baumann Steven A. Bookshester National Association of Broadcasters 1771 N Street, N.W. Washington, D.C. 20036 Robert J. Brinkmann National Newspaper Association 1627 K Street, N.W. Washington, D.C. 20006-1790 Robert Litt Williams & Connolly 910 17th Street, N.W. Washington, D.C. 20006 Attorney for National Press Club James Grossberg Ross, Dixon & Masback Suite 1300 East 555 13th Street, N.W. Washington, D.C. 20004 Attorney for Newsletter Association J. Laurent Scharff Reed, Smith, Shaw & McClay 1200 18th Street, N.W. Washington, D.C. 20036 Attorney for Radto-Televiston News Directors Association Bruce Sanford Douglas E. Lee Baker & Hostetler 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Attorney for Society of Professional Journalist TABLE OF CONTENTS i) et eesesccesococéocccecs fi STATEMENT OF INTEREST.....ccccccccccccccee 1 Peewee GOW BROT Bs cccccccccccccccccececse 7 SUMMARY OF THE ARGUMENT.....ccccccccsccee 12 PUNE s CESS Seccececcecccccoccccccccccce LS I. FLA. STAT. § 905.27 IS AN UNCON- STITUTIONAL RESTRAINT ON NEWS EE 15 A. The State's Asserted Interest Is Not Sufficiently Compelling To Justify An Absolute Prohi- bition On Witnesses' Disclosure Of Their Grand Jury Testimony... 20 l. None of the State's As- serted Interests Justify LN es > | Be There Is No Justification For A Blanket, Statutory Ban On Witness Disclosure... 26 B. Florida's Blanket Prohibition Is Not Narrowly Tailored To Protect The State's Asserted Interest... 39 II. FLA. STAT. § 905.27 MAKES IT IM- POSSIBLE FOR THE NEWS MEDIA TO FULFILL THEIR JUDICIALLY RECOG- NIZED FUNCTION OF INFORMING THE PUBLIC ABOUT POLITICAL CORRUPTION AND THE CONDUCT OF GOVERNMENT Pew RUEMMe Coscccccccccccccccecccccces 47 EEE LE SEE 59 APPENDIX Cases TABLE OF CITATIONS U.S. 58 (1963) (1972) (1941) , 372 , 408 U.S. 665 U.S. 297 (1976) U.S. 469 (1975) , 314 U.S. ’ 252 427 , 420 Craig v. Harney, 331 U.S. 367 (1947) Douglas Oi] Co, of California v. Petrol Stops Northwest, 441 i ® 211 (1979) eeeeeeeeeeeeeee#e First Amendment Coalition v. Judicial Inguiry Board, 784 F.2d 467 (3rd Cir. 1986) ....... Zi , 109 if ese &. Ore Court, 457 U.S. 596 (1982) F.2d 61 (lst Cir. ’ 1987) . 814 - Tecum, 797 F.2d 676 (8th Cir. 1986) eeeeeeeveeeeveeeeeeveeeeeeeeee - ii Page 16 57 16, 17 18 36 17, 27 49 17 21, 25 47 passim 43 30 30 2 a NEG pe Ae te - TABLE OF CITATIONS a - Cases Page Tecum, 575 F. Supp. 93 (S.D.N.Y. 1983) hipaa i 9 olen lae reed 31 176 N.J. Super. 455, 423 A.2a 695 (1980) ereereeeeeeeeeeeeeeeee 55 12. 1970, 321 F. Supp. 238 (N.D. Ohio 1970) ee 47 370 F. Supp. 1282 (S.D. Fla. 1974) eeeceeeeceeeeeeeeeeeeeeeneesee 30 | In_re Russo, 53 F.R.D. 564 (C.D. { Cal. 1971) e@eeeeeedtceeeeeeeeeeese 26 , 864 F.2d 1559 (llth aw TF 1989) eeeee eee eeeeeeeeeeece 30, 31 (Sup. Ct. Suffolk Co. Mass. 1976) eeoeceeeeeeeeoeeeeeeeceeeeeoee 56 412 Pa. 32, 193 A.2d _ ieee iene ings 56 ' (Va. Cir. Ct. Div. 1, July 18, 1982) ......... 56 Virginia, 435 U.S. 829 (1978) .. passim , 283 U.S. 697 eeeeeeeeceeeeeeeeeeeeeeses 41 (1931) - 344 «= TABLE OF CITATIONS Cases - , 427 U.S. 539 (1976) eeeeeveeeeveeeeeee New York Times v. United States, 403 U.S. 713 (1971) eeeeoeeeeeeeeeeeee , 328 U.S. 331 (1946) e*eeeseeeeeeeeeneeeeneeneeneeeee , 249 U.S. 47 (1919) eeeeeneenenetneeeeeeeneeneeee Seattle Times v. Rhinehart, 467 U.S. 20 (1984) e*eeeeeseeeeeeneeeeeeeeee#e , 384 U.S. 333 (1966) eeeeeeeneeeeeeeeeeeneeeeeee , 443 U.S. 97 (1979) e*eeseeseeeeeeneeeeeeeee , 215 F.2d 617 (3rd Case 1954) eeeeveveeeeeeee eee , 274 U.S. 357 (1927) eeeeoeeeeeeneeeeseeseeeneeeeeeee , 348 U.S. 483 (1955) e*eeeeseeeeeeeeeeneeee Wood v. Georgia, 370 U.S. 375 (1962) , 739 F.2d 1219 (7th a Cir. 1984) opinion, 469 U.S. 1200 (1985) .. - iv- Page passim 17, 38, 16 16 16 44 49 28 29 21 37 36 17 43 22 TABLE OF CITATIONS Statutes Fla. Stat. § 905.27 eereereeeeeeeees Newspaper Articles Brine and Wermiel, "3 former Some r- ville mayors indicted," The , Aug. 11, 1971, Pp. Le col. 1 i ee ee oe Smith, "Suit filed to force Wanicka to release evidence on so-called Jackman 'suicide'," - June 28, 1985, p. 1, col. 1 ’ Smith, "Captain disputes Jackman "suicide'," = , July 3, 1985, P- l, col. Be eeeeeeeeeeee Smith, "Jackman jury misled by Eagan?" = , July 18, 1985, Pp. l, col. Be eeeeeeeeeeee Smith, "Few witnesses called in probe," = , July 19, 1985, Pp. ie col. 4. eeeeeeeeeeees Other Materials V. Blasi, "The Checking Value in First Amendment Theory," 1977 A.B. Foundation Res.J. 521 ..... S. Beale & W. Bryson, Grand Jury Law & Practice, S 10:18 (1986) eeeee Nimmer on Freedom of Speech (1989) , "Pulitzer Prizes in Journalism, 1917-1985," Library of Congress Microfilm 86/225 (H) = 7 = Page passim 54 51 TABLE OF CITATIONS Other Materials Federal Rules of Criminal Procedure, Preliminary Draft, Advisory Committee Notes (1943) ....ceecee Minutes of Meeting Feb. 20, 1943 ... Hearing Before the Advisory Commit- tee on Rules of Crimirai Procedure, United States Supreme Court, Feb. 21, 1941 .cccccccces Advisory Committee on Rules of Criminal Procedure, United States Supreme Court, May 18, 1942 eeeeeoeceeeeoceeeeeeeespeeeeeeneene Grand Jury Investigation Indianapolis, Sup. Ct. Marion Cty., Crim. Div. 1, Dec. 7, 1973; Sup. Ct. Marion Cty., Crim. Div. 2, March 25, 1974, — Sept. 2, 1974, and Oct. 4, 1974 - yvi- Page 33, 34 35 35 35 55 em OOS No. 88-1993 In The Supreme Court of the United States October Term 1989 Robert A. Butterworth, Jr., Attorney General of the State of Florida, and T. Edward Austin, Jr., as State Attorney to the Charlotte County, Florida Grand Jury, Petitioners, Vv. Michael Smith, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Brief of j Reporters Committee for Freedom of the Press, American Newspaper Publishers Association, American Society of Newspaper Editors, National Association of Broadcasters, National Newspaper Association, National Press Club, Newsletter Association, Radio-Television News Directors Association, and Society of Professional Journalists in Support of Respondent Michael Smith Amici curiae are nine organizations rep- -2- resenting a broad spectrum of print and broadcast journalists nationally who gather and disseminate news about criminal judicial proceedings and the operations of government. They believe that adoption of the posi- tion advocated by the Petitioner -- that a broad, mandatory, perpetual gag on grand jury witnesses in all cases is permissible under the First Amendment -- would have a detrimental impact on news coverage well beyond the boundaries of Florida. If wit- nesses, including journalists, can be forev- er prevented from discussing publicly what they know about a case merely because they were questioned by grand juries “some con- tinuing public grievances could never be discussed at all. .. ." Wood v. Georgia, 370 U.S. 375, 393 (1962). Amici have written permission from both parties to file this brief. Copies of their letters have been filed with the clerk in accordance with U.S. Supreme Court Rule 29. Amici are: The Reporters Committee for Freedom of the Press is an unincorporated association of working reporters and news editors dedi- cated to protecting the First Amendment and freedom of information interests of the news media. It has provided research, guidance Or representation in virtually every major press freedoms case since its founding in 1970. The American Newspaper Publishers As- sociation is a nonprofit corporation whose membership consists of about 1,400 newspa- pers constituting about 90 percent of the total daily and Sunday newspaper circula- tion, and a substantial portion of the week- ly newspaper circulation, in the United States. The American Society of Newspaper Editors is a nationwide, professional orga- nization of more than 1,090 people who hold positions as directing editors of daily newspapers throughout the United States. The National Association of Broadcast- ers, organized in 1922, is a nonprofit in- corporated trade association that serves and represents America's radio and television stations and all the major networks. NAB seeks to preserve and enhance its members’ ability to freely disseminate information concerning the activities of government and other matters of public concern. The National Newspaper Association, with 5,000 members, is the oldest and largest na- tional trade association in the newspaper industry, representing the interests of weekly and daily newspapers throughout the country. The National Press Club is a dues~-paying organization of more than 4,300 print and broadcast correspondents, reporters, editors, photographers, publishers, edito- rial writers and editorial news cartoonists ' ' : ’ ; ' and artists, among others. The Club takes an active interest in the exercising of press rights nationally and, through its Freedom of the Press Committee, has spon- sored hundreds of presentations on press re- sponsibilities and freedoms. The Newsletter Association is an inter- national trade association of 850 publishers of more than 2,000 newsletters and other specialized services. The Radio-Television News Directors As- sociation, with a membership of more than 3,000 persons, is the principal professional Organization of journalists -- executives, editors, reporters and others -- who gather and disseminate news and other information on radio and television in the United States. The Society of Professional Journalists is a voluntary, nonprofit organization of nearly 20,000 members. The Society is the largest and oldest organization of journal- ists in the United States, representing every branch and rank of print and broadcast journalism. = ee STATEMENT OF PACTS Amici adopt the statement of the case and facts as set forth by the State of Florida with the following additions. In 1985, the Charlotte, Fla., Herald-News published several stories by Michael Smith alleging corruption in the of- fice of State Attorney Joseph D'Alessandro. Smith reported that D'Alessandro had with- held information from grand jurors during investigations and had failed to press charges against drug smugglers who later were indicted by federal grand juries. See Appendix at pg. A-4. On June 26, 1985, the Herald-News pub- lished a story by Smith alleging that Lee County officials covered up a 1974 homicide near the boundary of Lee and Charlotte counties. The front-page story stated that evidence had been uncovered by Smith and two private individuals indicating that of- ficials had deliberately made the killing of 18-year-old Brad Jackman look like a suicide. Lee County Sheriff Frank Wanicka, who was hunting with Jackman when he was shot, and some of his deputies "may have participated in the cover-up,” the newspaper concluded, based upon Smith's months-long investigation. See Appendix at pg. A-l. Shortly after Jackman's death, the Lee County Sheriff's Department, the Florida De- partment of Criminal Law Enforcement, the Lee County medical examiner, the Dade County medical examiner, and a Lee County grand jury investigating the death all concluded that Jackman had committed suicide. See Ap- pendix at pg. A-l. After the initial story, the Herald-News published several other articles by Smith alleging a cover-up of Jackman's death by Wanicka, D'Alessandro and State Attorney Robert Eagan, the prosecutor in charge of - 9 - the 1976 grand jury inquiry into the death, and other officials.1 Subsequently, a new grand jury convened to re-examine evidence related to the homicide. It asked Smith to testify in December 1985. Shortly thereafter, D'Alessandro, who was rumored to be a target of the grand jury investigation, disquali- fied himself from the inquiry and asked the governor to appoint an outside state at- torney to handle the case. D'Alessandro stated that he was withdrawing 'from any grand jury probe resulting from Smith's testimony. See Appendix at pg. A-3. 1 See e.g. Smith, “Suit filed to force Wanicka to release evidence on so-called Jackman ‘'suicide'," Herald-News, June 28, 1985, p. 1, col. 1; Smith, "Captain disputes Jackman ‘suicide'," Herald-News, July 3, 1985, p. 1, col. ly Smith, “Jackman jury misled by Eagan?" Herald-News, July 18, 1985, p. 1, col. 1; Smith, "Few witnesses called in probe," Herald-News, Jul 1985, p. 1, col. 4. ere =-"10 - T. Edward Austin, a state attorney in Jacksonville, was appointed to succeed D'Alessandro. Austin asked Smith to testify before the grand jury a second time in January 1986. Afterward, Austin publicly stated that D'Alessandro's office was a tar- get of the grand jury inquiry. See Appendix at pg. A-5. Austin subpoenaed Smith to appear before the grand jury again in March 1986.* At that time, the state attorney's staff warned Smith that, once he testified, he was pro- hibited from publishing any information about the grand jury investigation. The special grand jury terminated its investigation in April 1986 without issuing any indictments. * Because Smith testified voluntarily on two eccasions and complied with the subpoena summoning him before the grand jury for a third time, Amici will not address the issue of whether the grand jury had authority under state case law to compel him to testify. = - eer ere - ll - Myers News-Press and St, Petersburg News-Press reported the contents of Smith's Stories and the fact that Smith testified before the grand jury about the subject of his stories. - 12 - SUMMARY OF THE ARGUMENT Fla. Stat. § 905.27 is unconstitutional, whether it is viewed as a prior restraint on speech by grand jury witnesses or a post-publication punishment of those who disclose what they told the grand jury. Such restraints or sanctions are permissible only when expression poses a clear and present danger to some compelling state in- terest and if they are capable of protecting that interest without undue infringement on First Amendment rights. Before prohibiting speech or punishing a speaker after the fact, the government must demonstrate that a compelling interest is at stake in the case at bar. With regard to Respondent Michael Smith, the state has never demonstrated how disclosure of his grand jury testimony will jeopardize the ef- fectiveness of the grand jury which has long since adjourned. In fact, this case clearly illustrates how adoption of the state's po- - 13- sition would make it possible for prosecu- tors, by subpoenaing reporters, to deprive the public of important information about government corruption. Furthermore, Florida's claims that dis- closure by grand jury witnesses generally will harm the grand jury process are so re- mote and speculative that they cannot serve as the basis for a statutory prohibition against disclosure by all grand jury witnesses. Even in cases where a compelling inter- est can be demonstrated, the state must also prove that a restraint on expression is nar- rowly tailored to prevent the perceived harm. However, through its contempt provi- Sion, the Florida statute creates a presump- tion that anything a grand jury witness says publicly about the matter under investiga- tion after testifying is material that was presented to the panel. This effectively reverses the presumption, enunciated repeat- -14- edly by this Court, that speech about public affairs is protected under the First Amend- ment unless the government proves that there is a compelling need to keep the specific type of information secret. Furthermore, by prohibiting disclosure by witnesses in all cases, the statute permits no case-by-case examination to determine whether a restraint will be effective and whether it is narrowly tailored. Pinally, the broad restriction on ex- pression imposed by this statute is detri- mental to the very system the state of Florida claims it is protecting. The news media have a long and distinguished history of uncovering and reporting on political corruption. If a reporter can be barred from discussing corruption charges merely because he or she has been questioned by grand jurors, a skillful prosecutor can ef- fectively silence criticism of his perfor- mance or that of his political allies. - 15 - I. PLA. STAT. § 905.27 IS AN UNCOR- STITUTIONAL RESTRAINT ON NEWS DIS- SEMINATION The Florida statute operates as both a prior restraint on speech and subsequent punishment of those who disclose grand jury testimony. It prohibits grand jury wit- nesses from disclosing their own testimony (§ 905.27(1)) and the news media from dis- seminating the testimony of witnesses who make such disclosures (§ 905.27(2)). A per- son who violates these prohibitions can be convicted of a misdemeanor (§ 905.27(4)) or held in criminal contempt (§ 905.27(5)). As this Court recognized in Nebraska Press Association v, Stuart, 427 U.S. 539 (1976): prior restraints on speech and publica- tion are the most serious and the least tolerable infringement on First Amend- ment rights. - « « The damage can be particularly great when the prior re- straint falls upon the communication of news and commentary on current events. - 16 - Id, at 359. "Any system of prior re- ~gstraints of expression comes to this Court bearing a heavy presumption against its con- stitutional validity." New York Times v. United States, 403 U.S. 713, 714 (1971) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (citations omitted). Justice Holmes first noted that the First Amendment protects speakers against being punished for their utterances as well as against prior restraints. Schenck yv. United States, 249 U.S. 47, 51-52 (1919). Since then, this Court has repeatedly held that laws and court rulings penalizing speakers for contempt for discussing or criticizing government actions are unconstitutional.2 On numerous occasions it 2 See e.g. Bridges v. California, 314 U.S. 252 (1941) (voiding publisher's contempt for criticizing judge's action in labor dispute); Pennekamp vy. Florida, 328 U.S. 331 (1946) (voiding contempt for inaccurate accusation in newspaper during grand jury proceeding that judges were lenient toward certain individuals under grand jury - 179 has concluded that states cannot constitu- tionally impose criminal or civil penalties for publishing information lawfully obtained by the news media from judicial records, other government documents or by employing routine reporting techniques.? In Schenck, Justice Holmes asserted that sanctions may be imposed against a speaker only when “the words used .. . create a clear and present danger that they will 2 continued investigation); Craig v. Harney, 331 U.S.- 367 (1947) (voiding media contempt for criticizing judge's action in civil case); , 370 U.S. 375 (1962) (voiding county sheriff's contempt for charging publicly that grand jury was being used for political purposes and for interfering with the grand jury). 3 See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (rape victim's name obtained from document court clerk permitted reporter to read); Landmark Communications, Inc, v. Virginia, 435 U.S. 829 (1978) (information about secret judicial inguiry board proceeding); Smith v. Daily Mail Pub, Co., 443 U.S. 97 (1979) (name of juvenile homicide suspect obtained from police and prosecutor); The Plorida Star vy. B.J.F., 109 S.Ct. 2603 (1989) (rape victim's name obtained from document sheriff placed in press room). - 18 - bring about the substantive evils that Con- gress has a right to prevent." 249 U.S. at 52 (emphasis added). Looking back on the line of cases refining Justice Holmes’ stan- dard, the Court stated in Bridges vy. Cali- fornia, 314 U.S. 252 (1941), that: What finally emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious and the de- gree of imminence extremely high before utterances can be punished. Id. at 263. This Court has stated that prior re- straints on publication of information re- porters obtain legally pose an even greater threat to First Amendment interests than statutes which penalize speakers after the fact. A prior restraint, by contrast [to a post-publication penalty] and by def- inition, has an immediate and irrevers- ible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint "freezes" it at least for a time. - 19 - Nebraska Press, 427 U.S. at 559 (footnote omitted). It does not matter whether application of § 905.27 to grand jury witnesses is viewed as a prior restraint or a punishment after the fact. Under the decisions cited above, it could pass constitutional muster only if Florida could demonstrate a compel- ling state interest in preventing witnesses from disclosing their own testimony and that, in the case at bar, disclosure would pose a "clear and present danger" to that interest. It would have to demonstrate that the statute is narrowly tailored to ef- fectively serve that interest without impos- ing an unnecessary burden on protected expression, Nebraska Press, 427 U.S. at 562. - 20 - A. The State's Asserted Interest Is Not Sufficiently Compelling To Justify An Absolute Prohi- bition On Witnesses’ Disclo- . sure Of Their Grand Jury Tes- timony The state of Florida contends that the blanket, perpetual prohibition against wit- ness disclosure in § 905.27 is warranted by a compelling need to protect the secrecy of grand jury proceedings. In support of this proposition, it cites the justifications provided by this Court for maintaining grand jury secrecy generally: (1) To prevent the escape of those whose indictment may be contemplat- ed; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury Or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have in- formation with respect to commis- sion of crimes; (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. - 21 - Douglas Oil Co, of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979) (quoting United States vy. Rose, 215 F.2d 617, 628-29 (3rd Cir. 1954)). However, the mere existence of a gener- alized state interest, no matter how compel- ling, is not sufficient to deprive a person of First Amendment protection. The State must demonstrate the need for secrecy on a case-by-case basis and it has provided no explanation of how disclosure by reporter Michael Smith of his own grand jury testimo- ny after the grand jury has adjourned would jeopardize any of the interests enumerated in Douglas Oil. It has not even claimed that this grand jury investigation or wit- ness is unique, justifying a restraint on witness disclosure in this case. l. None Of The State's As- serted Interests Justify Gagging Smith Addressing each alleged danger in turn, it becomes apparent that the state's fears - 22 - are not only hypothetical, but are - remote and speculative that they fail to establish a compelling need for perpetually gagging Smith. Prohibiting Smith from publishing infor- mation about his appearance before the grand jury will not prevent those who might be in- dicted from escaping because in this case the grand jury investigation has been termi- nated and no one was indicted.4 Purther- 4 This Court affirmed a decision declaring unconstitutional an Indiana statute which subjected to criminal punishment any person who published the name of an individual against whom a sealed indictment or information had been filed until the defendant was in custody. Worrel) Newspapers of Indiana. Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), af£'d without epinion, 469 U.S. 1200 (1985). In its Opinion, the Seventh Circuit said: [T)he language of the statute does not limit its applicability to those situations which do present a “clear and present danger." At best the State's fears are remote and speculative. This degree of danger is =» 23 « more, while the grand jury was in session, its targets already knew that they were under investigation. Similarly, there is no danger that Smith's proposed publications would inter- fere with grand jury deliberations or would prompt targets of the investigation to at- tempt to influence the proceedings.» Be- cause the grand jury adjourned without re- turning any indictments, there is no reason for anyone to tamper with witnesses or dis- 4 continued insufficient to warrant an infringement on the First Amendment. Id. 739 F.2d at 1225. 5 The State argues that grand jurors need to remain anonymous in order to carry out their function without fear of reprisal. But it is routine in at least some parts of Florida to call the roll of grand jurors in open court when they are given their charge and to repeat this procedure when they return to open court following deliberations. This long-standing practice belies the state's argument that juror anonymity is essential to the grand jury process. Appendix at A-6 to A-9. - 24 ut JzeAaet eTqeebpetmoux e& suoceq o3 sazeeX Auew sexe 31 ybnouity *ZJeuuUeu BSATROe IIe pue eTqrsuodsez e ut setanp anoA wiojzed o3 sSiejjeU oTseq utTe3zze> jo jueztuboo eq 4 ysnu no; “UOT QUeRQ3e 3SesoT> anoA jetzezew stya eat6 noA ey. ebin prtnoa I *‘peuzeouo0> eq TTTtA nod YoOTYA YITA sSerznpecczad pue SAPT @UR JO SWOS SUTeTdxXe pue seUTT3MO YOTYA Tenuew sTuR JO uoT3erederd ey3 ojur euob eaey szogetT jo sanoy Aue *uoTatsod queotztubrs sty3 exe3gzepun nod cr @oueystsse pue uotTzeredoo0D [Inj s3zt noA sitezzo Asur0z3y @3e3S SYR JO SOTZIO SUL ‘“SOTISNE JO UOTIZeAQSTUTUpPeE eyR ut A3trttqrsuodsez juejiodut 3sow e peunsse gsn{ eaey no, AUNC GNWHD ALNNOD HONOMOESTIIH FHL OL FZWOO1TEM 6861 ‘€ 28q90390 zoser YOINOT4 YdWVs XUNNY 38 20OHLE WOO ALN.1OO BOO 14 HLS YOrMol4d 40 LLL) TTYL" W HINGES AImMIOyE ILS AGNWOLLY BL¥is SgnVr Tug e A-7 “ZLVG ONILaZGK MAN VY LaS ZGAVH AZHL 41 AUNE GNVED ASV "9 ‘SINZHLOIGNI ANV HSII1GNd WHA1D ZHL 17) "€ ‘LWOd3u¥ OL ONIKLANVY GAVH AZHL 4 ASV ‘¢ q “T10% TIVD GNV LUNOD N3dO NI FIGKASSV "" i ‘L¥OdSu OL ONIHLEWOS SVH ANE GNVED NAHM ‘Rune GNVESD ZHL LONULSNI 8 ‘NYMZYO4-ZDIA GNVY NVWaNOA INIOddV ‘f savas GNVES TBs “Rune GNVED LoOz1asS "§ ‘S441 11VE ZHL YWV4AMS "9 *SaSNIX4 — ‘ZOIAUZS NIV1dX3 GNVY SNOILSZND NOILVDIAIIVNO ASV 4 “TIOU TIVD “T SONIGAII0Ud 40 BAddO wry Aq adey pue 32nop ey2 Jo y29TD eYyI YITM paeTTs aq Tteys tzeydezZouejs 10 29310da2 3an02 ay3 Aq epew jo -92042 adtaosuez2 Aue 20 ‘sajou ‘sp1z0oe21 stydez80ue3s - — ey, ‘Aue xt ‘2e3e1dze3ur e432 pue ‘zeydezZo0uags 20 zaj20de2 3ano0d ayi ‘squeIstsse sty 20/pue feuz033y 2383S By2 ‘UOTIeUTWeXe cepuN sseUuzTM ey adaoxe queseid eq [TeYys uosied ou suotsses anok iy ‘pesealai uewspuog sty pue peZieyrstp uey2 S$} 3urpuszep ey3 pur a42n0° uedo o3Uuy 3°42 Sjuesead Aanf puer3 oya ‘uewer0jz se 3; suSts pure ,Titq @na3 ou,, seded sya 30 yo"q ey3 UO sesi0cpUe ueweI0; ANOA ‘IITq @Na3 OU J] ‘PRY eq uFD T#t23 “-_ —, A-9 *32n0 Sty JO Sprlodse12 BYy2 50 32ed e seworteq usey2 JT ezrayM 3AIN09 uedo O3UT 3STT 3ey2 suANIeZ szoqe{ anok jo uot IeUTWIe2 eyI IF pur nod a10jeq UI0MS SasSseuztM [Te JO ASTT & SdeayH HxAeTF ANCA ‘nok e1030q = AJT3Se2 TTBYS CYM SSauzTs Aue 03 ‘mez Aq peqtazsead — zouuew syd UT ‘UOTIeWATJZJe 20 YIPO Ue JaISTUTUPE T1eys Aeuzozazy e2e8I3g JueISTSsSy e423 20 Kauz033y a2e1S aya ‘uewez0z BuTIOe AnoA ‘UPWeIOZ INO, ‘AIN| puelss 343 30 Siequew 3delxe wool Kant puez’ ey ut jueseid é suo OU oq 35MM 92942 OWT? 2e42 JV _“ITTG enaa © = ra . puts O02 JOU IO AaYyIeYyM 330A 109 93839qT19P nok useya « adeoxe ‘Sewy2 [[e 3&8 Pue Sassaurita JO UOTIBUTMRKA aya ut nod pte O23 Boor Aane puei3 znof ut juesead wry eAey O32 3YSTA aya eAPy nok pue woo2 Aanf pues3 znok ut quaserd aq 02 3Y3TA syd SPY A “VOTICAe -ptsuos anod 2103 nok ae2o0jeq ewod Aew se $ia33eW Yons nok 03 Butjuesead jo asodand ey 2 1203 MPT kq peautodde ‘zostape [eBe_, anod sz Aauroz3zy 2383S PUL ‘anf pueaZd yons jo asn ay2 203 Aanf puei3 Aue jo asenbexz e432 uodn 92912 ey3 Aq peseeTez pue peuedo eq [TeYs uotadtaosuelrz pue ‘spi09e2 ‘sajzou yons 3ey2 septAoad me, aul ‘ot1qnd aya kq uotzoedsuy 02 39efqns JOU AeUTeIUOS peTees e ut A-10 The following statutes and rules follow Ped. R. Crim. P. 6(e): Alaska Crim. R. 6(h), (1)? D.C. Court R. Ann. 6(e); Hawaii R. of Penal P. 6(e); Ill. Rev. Stat. ch. 38, s 112-6; Kan. Stat. Ann. § 22-3012; Mass. R. Crim. P. 5(d); Mont. 6(e); Vt. R. Crim. P. 6(£)3 V.I. Code Ann. tit. 5, § 6(e); Va. Code R. 3A:5(b); W.Va. eee P. 6(e) (2); Wyo. Stat. §§ 7-5-307, The following statutes and rules are ee as operating similarly to Fed. R. Crim. P. 6(e): Minn. R. Crim. P. 18.08; Del. Code Ann. tit. ll § 1273; S.D. Cod. L. Ann. 23A-5-16; N.Y. Penal L. § 215.70. The following statutes and rules are silent as to secrecy requirements on grand jury witnesses: Ark. Stat. Ann. § 16-85-514; Cal. Penal Code § 924.2; Ga. Code Ann. § 15-12-68; Idaho Crim. R. 6(e); Iowa Code § 813.2, R. 3; Me. Rev. Stat. Ann. tit. 15, § 1252; Md. Crim. R. 8-213; Neb. Rev. Stat. §§ 29-1404 to ~1415; N.H. Rev. Stat. Ann. § 600:3, 4; Ohio R. Crim. P. 6(e); Okla. Stat. tit. 21, §§ 582, 583; Or. Rev. Stat. § 132.060, 100; Penn. R. Crim. P. 256-257; Tenn. R. Crim. P. 6(k) (1); Wis. Stat. § 756.20. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0512%3A12. Public record. Not legal advice.