494 U.S. 624 (1990)
Michael Smith was a reporter for the Charlotte Herald-News in Charlotte County, Florida.1 While writing a series of newspaper articles, he obtained information relevant to alleged improprieties committed by the Charlotte County State Attorney’s Office and Sheriff’s Department.2 A special prosecutor appointed to investigate the allegations called Smith to testify before a special grand jury which had been convened as part of the investigation.3
Florida Statute section 905.27 provides that a grand juror or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury.4 This prohibition applies except when required by a court for specified purposes. The statute makes it unlawful to publish or disclose any testimony of a witness examined before the grand jury.5 At the time he testified, Smith was warned by the special prosecutor’s staff not to reveal his testimony in any manner, and that such revelation could result in a criminal prosecution for violating the statute.6
After the grand jury terminated its investigation, Smith set out to publish a news story and perhaps a book about the subject matter of the investigation, a publication which would include his testimony and experiences in dealing with the grand jury.7 He sued in the United States District Court for the Middle District of Florida, seeking a declaration that the statute was an unconstitutional abridgment of speech and an injunction preventing the State from prosecuting him.8
The District Court granted summary judgment to the State.9 The United States Court of Appeals for the Eleventh Circuit reversed.10 The Supreme Court granted certiorari.11
Whether a Florida statute that prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended violates the First Amendment to the United States Constitution?12
A state may not constitutionally punish the publication of truthful information lawfully obtained absent a need to further a state interest of the highest order.13 The proper functioning of the grand jury system depends upon secrecy, which serves interests including encouraging witnesses to come forward, ensuring full and frank testimony, preventing flight by those about to be indicted, and protecting the reputations of those exonerated.14 These interests must be balanced against First Amendment rights.15 A permanent ban on a witness disclosing his own testimony after the grand jury has ended is not justified when the asserted state interests are not served or are insufficient to outweigh the speech rights at stake.16
Yes. Smith obtained the information on his own as a reporter before he ever testified before the grand jury.17 After the grand jury terminated its investigation, there was no longer any need to keep information from the targeted individual to prevent escape or to prevent the importuning of grand jurors whose deliberations were over.18 Florida’s interest in preventing subornation of witnesses is only marginally advanced by the ban because present-day criminal procedure requires disclosure of witnesses and substantial penalties already exist for perjury and witness tampering.19
Reputational interests alone cannot justify the proscription of truthful speech.20 Neither the Federal Rules of Criminal Procedure nor the rules in the majority of states impose an obligation of secrecy on grand jury witnesses with respect to their own testimony.21 The permanent ban therefore violates Smith’s First Amendment right to make a truthful public statement of information he acquired on his own.22
The Florida statute violates the First Amendment to the extent it prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended.23
Related opinions on this issue
Justice Scalia joined the Court’s opinion but clarified that the holding refers to the information contained within the witness’s testimony but not necessarily to the fact that the witness conveyed that information to the grand jury.24 He noted considerable doubt whether a witness can be prohibited, even while the grand jury is sitting, from making public what he knew before entering the grand jury room.25 Scalia observed that a different question is presented by a witness’s disclosure of the grand jury proceedings themselves.
This is knowledge acquired not on his own but only by virtue of being made a witness.26 There may be good reasons for the state to keep such information confidential even after the term expires.27 This would assure that grand jurors will not be intimidated in the execution of their duties by the fear of unjustified public criticism to which they cannot respond.28