In Butterworth v. Smith, 494 U.S. 624 (1990), the Supreme Court ruled that states may not prohibit grand jury witnesses from disclosing their testimony after the grand jury term has expired. Such a prohibition, the Court said, violates witnesses’ First Amendment rights.

Smith wanted to write about grand jury testimony after the jury ended

Michael Smith was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing a series of articles, Smith gathered information concerning alleged wrongful conduct in the county’s state attorney’s office and sheriff’s department. He was called to testify before a Florida grand jury investigating those improprieties.

After the grand jury ended its investigation, Smith desired to write about both the information he had obtained and his grand jury experience. At the time, however, a Florida statute prohibited him from disclosing his grand jury testimony, so he filed a lawsuit in a U.S. district court, charging that the statute violated his free speech rights.

Court said states could not silence grand jury witnesses after the investigation was completed

The trial court found that the ban was necessary to protect the proper functioning of grand juries. On appeal, the 11th U.S. Circuit Court of Appeals reversed, holding that Florida’s interests in protecting its grand juries’ confidentiality were outweighed by witnesses’ First Amendment rights.

The Supreme Court unanimously affirmed. Writing for the Court, Chief Justice William H. Rehnquist agreed that most of a state’s interests in grand jury secrecy diminish when the jury completes its term. Therefore, while a state can prohibit witnesses from revealing their testimony while the grand jury is sitting, it cannot silence them after the investigation is completed.

Court considered states' interests in grand jury secrecy

In reaching its decision, the Court carefully considered a state’s interests in grand jury secrecy.

The Court recognized that these include making it easier for reluctant witnesses to come forward voluntarily with the knowledge that the subject of the investigation will not know of the witness’s testimony, and encouraging honest testimony, as unknown witnesses will not be subject to harassment or retribution.

In addition, secrecy minimizes the risk that persons about to be indicted will flee or attempt to influence grand jurors’ voting on the indictment. Confidential proceedings also protect persons who are investigated and ultimately exonerated.

Court decided First Amendment rights of witnesses outweighed other interests

The Court noted that the state’s interests in protecting and encouraging witnesses, while important, are adequately protected because each witness reserves the right to decide whether to disclose his or her own testimony. The interests related to looming indictments cease to exist.

According to the Court, the state’s only interest to survive a grand jury’s term is the desire to protect the reputation of those who are exonerated. When weighed against the First Amendment rights of witnesses, however, the reputational interest is insufficient to support a perpetual ban.

“Absent exceptional circumstances,” Rehnquist wrote, “reputational interests alone cannot justify the proscription of truthful speech.”

Court said ban on witnesses' speech could increase risk of improper subpoenas

The Court further held that an automatic, permanent ban on witnesses’ speech increased the risk that grand jury subpoenas would be used for improper purposes.

Rehnquist noted, “The potential for abuse of the Florida prohibition, through its employment as a device to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent.”

This article was originally published in 2009. Douglas E. Lee is a circuit judge for the 15th judicial circuit in northwest Illinois. When he wrote this article, he was a partner with a law firm in Dixon, Illinois. Before joining that firm, he worked at Baker & Hostetler in Washington, D.C., where he focused his practice in First Amendment litigation. When he took the bench in 2019, Mr. Lee had considerable experience in matters involving libel, privacy, and access to the courts. He also wrote regular commentaries for the website of the First Amendment Center in Nashville.

Send Feedback on this article