Butterworth v. Smith
Decided on Mar. 21, 1990; 494 US 344


A. Issues Discussed: Free speech

B. Legal Question Presented:

Can a grand jury witness be barred from disclosing his own testimony after the term of the grand jury has ended?

A. Background:

"Respondent was a reporter for the Charlotte Herald-News in Charlotte County, Florida. 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. A special prosecutor appointed to investigate the allegations called respondent to testify before a special grand jury which had been convened as part of the investigation. At the time he testified, respondent 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 Fla. Stat. 905.27....

After the grand jury terminated its investigation, respondent set out to publish a news story - and perhaps a book - about the subject matter of the investigation, a publication which would include respondent's testimony and experiences in dealing with the grand jury. He sued in the United States District Court for the Middle District of Florida, seeking a declaration that 905.27 was an unconstitutional abridgment of speech, and an injunction preventing the State from prosecuting him. The District Court granted summary judgment to the State, holding that Florida was entitled to make the judgment that a permanent and total ban on the disclosure of witness testimony was necessary to the proper functioning of the grand jury, and that 'this is the exceptional case where a severe infringement on rights under the First Amendment is permissible.'

The United States Court of Appeals for the Eleventh Circuit reversed."

On certiorari the US Supreme Court affirmed the judgment of the 11th U.S. Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by M. David Gelfand, Terry E. Allbritton, James K. Green, and Steven R. Shapiro; and for the Florida Press Association et al. by Richard J. Ovelmen, Gregg D. Thomas, and Gary B. Pruitt.

Gregg D. Thomas argued the cause for respondent. With him on the brief were Steven L. Brannock and Julian Clarkson.
Arthur I. Jacobs filed a brief for the Florida Prosecuting Attorneys Association as amicus curiae urging reversal.

George L. Waas, Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs were Robert A. Butterworth, Attorney General, pro se, and Louis F. Hubener, Assistant Attorney General.


"Historically, the grand jury has served an important role in the administration of criminal justice....

At the same time, we have recognized that the invocation of grand jury interests is not 'some talisman that dissolves all constitutional protections.'...

When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape - that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other. There is also no longer a need to prevent the importuning of grand jurors since their deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears of retribution is, we think, not advanced by this prohibition; any witness is free not to divulge his own testimony, and that part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling of the Court of Appeals...

Against the state interests which we have just evaluated must be placed the impact of Florida's prohibition on respondent's ability to make a truthful public statement. The effect is dramatic: before he is called to testify in front of the grand jury, respondent is possessed of information on matters of admitted public concern about which he was free to speak at will. After giving his testimony, respondent believes he is no longer free to communicate this information since it relates to the 'content, gist, or import' of his testimony. The ban extends not merely to the life of the grand jury but into the indefinite future. 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."

The US Supreme Court affirmed the judgment of the 11th US Circuit Court of Appeals.

Justice Vote: 9 Pro vs. 0 Con

  • Rehnquist, W. Pro (Wrote majority opinion)
  • Scalia, A. Pro (Wrote concurring opinion)
  • O'Connor, S.D. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Stevens, J.P. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the 11th US Curcuit Court of Appeals judgment; the Supreme Court affirmed in a 9-0 vote, giving the ACLU an apparent win.