Butterworth v. Smith

Background

A local newspaper reporter was called to testify before a special grand jury investigating alleged misconduct by county prosecutors and the sheriff. Florida law §905.27, with narrow exceptions, made it a crime for anyone who appeared before a grand jury to reveal testimony or the “content, gist, or import” of testimony. After the grand jury ended, the reporter sought a court ruling that the law unconstitutionally barred him from publishing his own testimony; lower courts disagreed until the Eleventh Circuit and now this Court reversed the criminal ban in part.

Reasoning

The Court framed the central question as whether Florida may criminally prohibit a witness from disclosing his own grand jury testimony once the grand jury has finished. Balancing the reporter’s First Amendment right to speak about information he lawfully possessed against Florida’s interest in grand jury secrecy, the Court concluded the State’s asserted interests did not justify a permanent speech ban. The opinion relied on prior decisions protecting publication of truthful information on public matters and noted that federal rules and most States do not require witnesses to keep their own testimony secret. The result: the law cannot criminally bar a witness from publishing his own grand jury testimony after the grand jury’s term ends.

Real world impact

The decision protects reporters, witnesses, and potential whistleblowers who want to speak about information they had before testifying. It does not eliminate secrecy for other people’s testimony or for disclosures while a grand jury is still sitting. The Court also left open special situations, such as investigations continued by a new grand jury, which it did not decide.

Dissents or concurrances

Justice Scalia concurred, agreeing with the judgment but stressing a distinction between publishing information a witness already had and publishing the fact of what was said to the grand jury, which might justify different treatment.