Butterworth v. Smith – Oral Argument – January 16, 1990

Media for Butterworth v. Smith

Audio Transcription for Opinion Announcement – March 21, 1990 in Butterworth v. Smith

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William H. Rehnquist:

We’ll hear argument next in Number 88-1993, Robert A. Butterworth v. Michael Smith.

Mr. Waas.

George L. Waas:

Mr. Chief Justice, and may it please the Court:

The State of Florida believes that any disclosure of grand jury proceedings necessarily compromises or breaches security.

Florida has made a policy choice in recognition of this matter, a policy decision to structure its criminal justice system in such a way so as to permanently bar witnesses and other participants in the grand jury process from ever disclosing testimony or evidence given to the panel in the absence of a court order.

Although Florida’s choice differs from that of the majority of the other states, and indeed of the Federal Government, this does not mean that Florida is constitutionally prohibited from making the policy choices that it makes–

Byron R. White:

Isn’t… wasn’t your policy overturned solely with respect to a witness disclosing his own testimony?

George L. Waas:

–That is correct, Your Honor.

The Eleventh Circuit found the statute unconstitutional insofar as it applies to a witness disclosing his own testimony after the completion of an investigation.

The difficulty with that decision is that it conflicts with the recognition by this Court and others that the interests justifying grand jury secrecy, while reduced when an investigation is completed, are not eviscerated.

They remain whole and viable.

Byron R. White:

Which… which, as applied to a witness revealing his own testimony, what is the state’s interest?

George L. Waas:

Your Honor, the interests are numerous, and they are borne of those general interests that are cited on pages 12 and 13 of our brief, as well as by this Court in the Douglas Oil case, with these specific additions.

Florida is a capital punishment state.

There is no statute of limitations with respect to capital punishment in Florida.

Therefore, an investigation that is begun during one term of the grand jury and concluded during that term may be picked up months or years later, based upon newly discovered evidence.

Byron R. White:

Well, that may be so, but why prevent a witness from revealing his own testimony?

George L. Waas:

Because if a witness may reveal his own testimony, he will be able to also implicate the questions that are asked.

That’s part of the testimony, the answers in the abstract would not be sufficient–

William H. Rehnquist:

I don’t see that, I don’t see that it necessarily is.

I wouldn’t have read the Eleventh Circuit opinion to say that the Florida statute was invalid insofar as it prohibited the revelation of the questions asked to the witness.

George L. Waas:

–Your Honor, when we talk about testimony, that word has a certain common understanding, and that is when you look at a transcript of testimony what you see are the questions asked and the answers returned.

You cannot siphon out the questions from the answers.

Indeed, if Mr. Smith here were to have obtained a transcript of his testimony, it would not have simply said in the transcript that which he was responding to.

It would include the questions as well.

William H. Rehnquist:

Well, suppose… supposing the Florida statute had been held invalid by the Eleventh Circuit only insofar as it prevented a witness from disclosing his own testimony, but it also said that the witness, in disclosing his own testimony, could not do it in question and answer form.

That the only thing the witness could do would be either to repeat his answers or to give a paraphrase of his testimony.

George L. Waas:

Your Honor, the difficulty with that as I see it is that it begins to enter into legislative determinations.

And it is our position that the First Amendment, which is the basis of the Eleventh Circuit’s decision and the basis for the claim made by Mr. Smith here, is not susceptible, necessarily, to a turning on or turning off like a water faucet.

The First Amendment flows with respect to participants and cannot be cut off at the point of limiting any disclosure solely to testimonial matters.

George L. Waas:

It’s not so much Mr. Smith’s testimony that is involved.

It is the testimony of grand jury witnesses.

Antonin Scalia:

Mr. Waas, suppose… suppose the witness does not preface his disclosure with this is what I testified to.

He just… he just tells somebody or he prints in a newspaper story the very same thing which he knew, which he happened to testify to before the grand jury.

So there is no indication on the face of it that that is what he said.

Does that violate your statute?

George L. Waas:

No, it does not, Your Honor.

Antonin Scalia:

It does not.

George L. Waas:

And that, I believe, points out a misconception in this case.

There is nothing in the statute that prohibits Mr. Smith or any grand jury witness from disclosing the information that that witness had going into the grand jury room.

It… the statute doesn’t say that he is prohibited from disclosing what he knew going in or what he knew coming out.

He is free to disclose the facts of his investigation.

He is free to criticize, to cajole, to condemn the grand jury system, its members, its process.

John Paul Stevens:

Well, let me ask you then–

George L. Waas:

Yes, Your Honor.

John Paul Stevens:

–can he disclose the fact he testified?

George L. Waas:

He can disclose the fact that he was called before the grand jury.

John Paul Stevens:

Could the man in this case get on a news broadcast and say I testified before the grand jury yesterday.

They are investigating Mayor so and so.

I think Mayor so and so is a crook because I saw him do X, Y and Z.

Period.

That’s all he said.

George L. Waas:

No problem with either one of those questions, Your Honor.

John Paul Stevens:

That would be perfectly all right?

George L. Waas:

That is correct, for this reason.

What the statute addresses is what goes on within the grand jury room.

People are free to conjecture as to what the grand jury is investigating.

But once you identify–

John Paul Stevens:

If that’s the case, what is the state interest… I’m sorry, if your answer to me is correct, what is the state interest in saying that’s all right, but it suddenly implicates a great state interest if he adds the words “and I so testified yesterday”?

George L. Waas:

–For this reason, Your Honor.

George L. Waas:

Once you begin to reveal what goes on within the grand jury walls, identity of names, of potential witnesses, of confidential informants are–

John Paul Stevens:

No, this doesn’t identify… just this particular case.

What is the state interest in my hypothetical?

How can it possibly hurt, one hurt more than the other?

George L. Waas:

–Your Honor, your hypothetical may involve… in the skeletal posture of the questions it is quite possible that with respect to that case there would be no triggering of the interest.

John Paul Stevens:

Okay.

George L. Waas:

But, as the cases which we recite in our reply brief demonstrate, the fact of the absence of any vitality of the interest justifying grand jury secrecy in a particular case doesn’t mean that the interests don’t exist to the point of overcoming a First Amendment claim.

John Paul Stevens:

Can you give me a hypothetical in which the witness’ description of his own testimony would imperil, after the grand jury investigation is over, would imperil the… would be contrary to the policy of the statute?

George L. Waas:

Yes, Your Honor, for this reason.

As I said earlier–

William H. Rehnquist:

Justice Stevens asked you to give him a hypothetical.

George L. Waas:

–Yes.

Let us assume that in the course of his representation the grand jury were to ask, with respect to a confidential informant whose name, if disclosed, would implicate that confidential informant to the point of risking his life.

Let’s assume that happens.

With respect to Mr. Smith’s testimony, he is now free, as he represents in his pleadings both below and here, to not only disclose his own testimony, but matters which he learns while before the grand jury.

And if he is making a First Amendment–

John Paul Stevens:

Does he listen to all the other witnesses testify?

He doesn’t listen to anybody testify except himself.

But some grand juror says did you see Joe Smith there, and Joe Smith is the man who might get killed if he is identified.

He says yes, I saw him, he was there on the scene of the crime.

So he gets on the radio the next day and he doesn’t say he testified, he says you know, Joe Smith was at the scene of the crime.

And maybe… won’t that kill Joe Smith just as much as saying and I so testified?

George L. Waas:

–But, Your Honor, what has happened in that case is that at that point, because he has now learned about another person’s testimony, if he were to reveal that he would be knowingly revealing grand jury testimony.

William H. Rehnquist:

Well–

–But the Eleventh Circuit didn’t strike down that part of the statute.

That isn’t the witness’ own testimony.

That’s something he learned as a result of being in the grand jury… the grand jury room.

George L. Waas:

Your Honor, that is correct.

The difficulty, though, is, as I said earlier, putting parameters around a First Amendment claim.

William H. Rehnquist:

Well, but the whole law is devoted to putting parameters around things.

William H. Rehnquist:

What you’re saying in effect is that although there is no evil involved in situation A, there would be involved in situation B, and therefore you are entitled to prohibit both of them.

But that isn’t our First Amendment law.

George L. Waas:

Your Honor, as I understand it, with respect to those cases involving the former CIA agent and those cases involving opportunities to engage in First Amendment activities on political… on military bases, this Court said, as I understand this, that even though the interests were not demonstrated to be viable in those cases, the interests of protecting national security and protecting military secrets were enough to overcome the First Amendment claims in those cases, even though those interests were not real and demonstrated for those particular cases.

Byron R. White:

Well, I suppose you can’t say that you are really trying to protect the life of the… of this fellow who wants to reveal his own testimony.

If he wants to protect himself he can by being quiet.

But I suppose that if he is asked in the grand jury room and he testifies to a certain fact, and he is asked well, where did you… how do you know this?

Then he says John Jones told me.

Now, he is then identifying some other people that know maybe some critical facts that some other people wouldn’t like him to testify to.

George L. Waas:

Your Honor, I understand that, and I am not suggesting that there may not be alternative policy choices available.

And perhaps a particular policy choice made by a given state may not be the best choice.

But the question is whether there is a First Amendment right for Mr. Smith to disclose–

Byron R. White:

Well, I was trying to give you… I was trying to give you an example where your… that would defend your position.

George L. Waas:

–I understand that, and I am just trying to point out that with respect to the First Amendment posture of the case, when you are talking about the vitality of those interests and apply them to particularized efforts to disclose what has become grand jury information by virtue of its having been imparted, then the question becomes whether it is more feasible for a state to protect its own interests by prohibiting public dissemination or disclosure of that which the grand jury is considering and undertaking.

You see, once you identify the fact of the grand jury’s having received certain information, then conjecture and speculation that is generally available with respect to particularly media coverage of grand jury proceedings goes by the board.

There has to be some way to retain the vitality of grand jury proceedings specifically when we are dealing with, as is Flcrida’s situation, a state that is unique geographically.

I am not prepared to argue to this Court that the other 49 states don’t have their own uniqueness, they do.

But Florida’s geography means that the types of issues that are presented to a state grand jury involve matters of international consideration, drug trafficking,–

Sandra Day O’Connor:

Well, Mr. Waas, I suppose that that could be said of Federal investigations for violation of Federal laws in Florida.

George L. Waas:

–That is correct.

Sandra Day O’Connor:

But the Federal rule on disclosure of grand jury testimony is not as broad as you describe Florida’s as being, is it?

George L. Waas:

No, that’s correct, Your Honor.

Sandra Day O’Connor:

And indeed, application of the Federal rule in the State of Florida would not prohibit what Mr. Smith proposes to do.

George L. Waas:

That is correct, Your Honor.

The Federal rule would permit witnesses to disclose, upon leaving the grand jury room, unless a protective order was entered.

Sandra Day O’Connor:

And yet the, the public interest is the same.

So I… your argument is a little difficult for me to follow.

What provision of the statute would prohibit the witness from revealing identities of grand jurors, for example, or what the witness saw there, other than testimony or evidence?

George L. Waas:

With respect to your… the first question that you asked with respect to the Federal rule, you are quite correct.

But–

Sandra Day O’Connor:

I’m talking about Florida’s statute now.

Sandra Day O’Connor:

What provision of your… I don’t even know what the statute means.

It doesn’t appear to me, testually, to mean either what you say it does or what your opponent says it does.

George L. Waas:

–Your Honor, the statute prohibits disclosure of testimony and evidence given to the grand jury.

Sandra Day O’Connor:

So it wouldn’t prohibit disclosure of the identity of the grand jurors?

George L. Waas:

If… if, within the context of questions asked by a grand juror, the identity of the grand jurors is disclosed, then, because it is testimony, to that extent–

Sandra Day O’Connor:

Well, if it isn’t testimony it doesn’t prohibit it.

Right?

George L. Waas:

–The statute itself does not address identity of grand jurors.

It does address questions asked by the grand jurors, comments made–

Sandra Day O’Connor:

If… if you regard those questions as testimony, I mean, that’s your theory?

George L. Waas:

–Yes, Your Honor.

Yes.

Because it comprises the common understanding of what constitutes testimony.

If Mr. Smith, as I said earlier, were to ask for a copy of this transcript, he would not only get the answers, he would get the questions and the answers returned to those questions.

Anthony M. Kennedy:

Well, I suppose the state could just say Juror Number 1, Juror Number 2.

I mean, the grand jurors don’t usually say good afternoon, my name is so and so.

They don’t say that.

George L. Waas:

Quite possibly.

The… the question with respect to identity of grand jurors is not addressed in the statute.

But where the questions asked by a grand juror and the grand juror is identified, or by virtue of the witness having knowledge of the grand juror from previous experiences, by coupling that information and then going forth and disclosing that, you will not only have identified the grand juror, but the questions asked by the grand juror.

And the effect on future grand jurors is demonstrated by this Court’s recognition of the interests justifying secrecy set out in the Douglas Oil cases and in other cases.

Antonin Scalia:

Mr. Waas, what was the rule about grand jury secrecy at the time the First Amendment was adopted?

George L. Waas:

As I understand it, the common law pertaining to grand juries did not preclude witnesses from testifying.

However, witnesses who were given oaths were bound by their oaths of secrecy.

And indeed, in the Landmark case, this Court in a footnote recognized that with respect to participants an oath of secrecy can be administered for the purpose of protecting the confidentiality of those proceedings.

And the footnote, footnote 12 of that case, specifically cites to the Florida Judicial Qualifications Commission.

Now, it is my position that if the state, or any entity of the state that conducts investigations, may impose an oath of secrecy to protect the internal security of its operations and functions, then surely a state can enact a statute that serves the same purpose.

This statute here has the effect of imposing an oath of secrecy, and we have by testimony the fact that–

Antonin Scalia:

Well, but it doesn’t.

But it doesn’t.

Antonin Scalia:

That oath of secrecy you are talking about referred to in the footnote–

George L. Waas:

–That is correct.

Antonin Scalia:

–that meant you would not disclose that information to anybody, didn’t it?

That just didn’t mean you would not go up to somebody and say not only is this the fact, but I testified to it.

Didn’t that oath mean you couldn’t go out and tell people that same information?

George L. Waas:

I am not so sure, Your Honor.

Antonin Scalia:

Well, that’s how I interpret it.

George L. Waas:

I believe that any of these kinds of statutes, where a particular type of investigation is underway, be it a judicial qualifications commission or an ethics commission or an elections commission, and there is an oath that the… that the witness will not divulge that which he testified to before the forum, still has the substance of that information which is free to be disclosed because it comes from alternative sources, which this Court is most sensitive to.

And the fact that the alternative sources are those sources independent of the grand jury or the judicial qualifications commission allows that person to freely disclose what he or she has gathered, so long as what is not disclosed is the fact that that information was imparted to the governing body.

Antonin Scalia:

There was no general prohibition.

I mean, that’s a case-by-case determination by the grand jury, that secrecy is needful in this particular case.

Was it ever the practice to have simply an across-the-board rule of secrecy, such as you do?

George L. Waas:

Your Honor, I am not aware of any other secrecy standard imposed other than the one that is indicated here, and that’s that a witness cannot disclose what he tells the grand jury.

Antonin Scalia:

I am asking was that the situation at common law?

George L. Waas:

Under common law a witness was free to disclose.

There was no prohibition.

But I believe that there was an oath of secrecy that operated to that effect.

Antonin Scalia:

Which would always be imposed, or which was imposed case by case?

George L. Waas:

I am not sure whether it would be imposed in all instances.

But there was no regulation in effect.

Anthony M. Kennedy:

Wasn’t it imposed just for the life of the grand jury?

Was it imposed just for the life of the grand jury or forever and ever?

George L. Waas:

The oaths of secrecy?

Anthony M. Kennedy:

Yes.

Certainly it didn’t survive trial, did it?

George L. Waas:

Your Honor, I am not sure, but I do know that the oaths now don’t have a time frame established.

And that’s because investigations do carry forth.

They don’t necessarily–

Anthony M. Kennedy:

Your statute, as I understand it, is in perpetuity?

George L. Waas:

–That’s correct.

George L. Waas:

That’s correct.

William H. Rehnquist:

It seems to me, Mr. Waas, that the position you contend for really has a potential for abuse.

A district attorney could summon someone before the grand jury who is about to blow the whistle on some governmental operation and in effect seal his lips, wouldn’t he?

George L. Waas:

No, Your Honor.

And again, that goes to my response earlier.

There is nothing in the statute that precludes Mr. Smith or any witness from disclosing the knowledge that he had going into the grand jury room.

He is free to unearth and disclose corruption, government misconduct–

William H. Rehnquist:

So, your only quarrel then with the Eleventh Circuit’s disposition of this case is that you’re afraid its disposition would allow the release not only of the answers of a witness in the grand jury but the questions as well?

George L. Waas:

–That, and the interests that surround grand jury secrecy generally.

William H. Rehnquist:

But… let’s not get into these vague abstractions.

What else does the Eleventh Circuit’s opinion forbid you to do that you want to do?

George L. Waas:

Your Honor, the problem with the Eleventh Circuit opinion–

William H. Rehnquist:

Can you answer my question?

George L. Waas:

–Yes.

William H. Rehnquist:

I said what else, other than what we have just talked about, does the Eleventh Circuit’s opinion forbid you to do which you want to do?

George L. Waas:

It… it forbids the state from being able to assure, on a continuing permanent basis, that what is disclosed by witnesses before the grand jury remain before the grand jury.

It’s… it’s the opening the door to the grand jury room.

William H. Rehnquist:

But, this is a very general response, Mr. Waas.

I was hoping for something more specific.

Where… you say that the grand… that the witness is perfectly free to give the substance of his testimony elsewhere.

George L. Waas:

That is correct.

William H. Rehnquist:

But what you’re afraid of is that the Eleventh Circuit’s opinion will not only allow that, but it will allow disclosure of a transcript which would show questions as well as answers.

Now, what else is there in addition to that?

Now think before you answer that.

George L. Waas:

When the information that is imparted contains names of persons who may be proven innocent, that is subject to disclosure before the grand jury now.

So the prospect of not being able to protect the innocent accused is vitalized.

William H. Rehnquist:

Well, but you’re not going to protect the innocent accused if the guy goes out and says the same thing as he has said before the grand jury.

The same names will be in that disclosure as were disclosed to the grand jury.

George L. Waas:

But if it’s disclosed to the grand jury it identifies potential targets, it identifies potential witnesses that… whose identity may not have been previously disclosed.

You see, once… the substance of the information may be published, and the fact that a person testifies before a grand jury may be published.

George L. Waas:

But that doesn’t mean that at that point the grand jury is in possession of information which operates to target potential defendants, identify potential informants, identify existing informants, subject the grand jurors to the type of scrutiny with respect to their questions.

All of these interests begin to ripple out once the door to the grand jury room is opened.

William H. Rehnquist:

But what you’re saying is if the grand jury door is open only as far as the Eleventh Circuit opened it, it necessarily is going to be all the way open.

And all of our cases suggest that isn’t true.

George L. Waas:

Your Honor, the Eleventh Circuit’s opinion takes away that which is available under the rule… under the Federal rule upon which Mr. Smith seeks to model Florida’s law, and that is the ability to impose any kind of post-testimony protective order.

The Eleventh Circuit doesn’t address that.

It says when the investigation ends.

It doesn’t say when the investigation ends.

It doesn’t take into account that investigations carry over months, even years, beyond the term of court.

See, that’s really the problem with the Eleventh Circuit opinion.

It tends to decompartmentalize grand jury proceedings.

And we are suggesting, and our witnesses demonstrate, that grand jury proceedings are not decompartmentalized or compartmentalized, but flow from term to term to term.

And if at the end of a grand jury investigation a prosecuting attorney announces that this investigation is over and the witness goes forth and holds a press conference, and the next witness comes in and, by virtue of that witness’ disclosures, the prosecuting attorney or the grand jury change their mind and want the investigation to proceed further, the cat could be out of the bag.

And these interests are not interests that are speculative, because our experience and our knowledge teach us that if certain events occur, certain consequences are going to follow.

And that’s why I believe that the appropriate test is the one enunciated in Seattle Times, as embellished in the Albertini case.

And that is, whether the regulation furthers important or significant government interest which will be achieved–

May I–

George L. Waas:

–less effectively absent the regulation.

John Paul Stevens:

–May I ask if any… may I ask… two questions really.

Has anyone… any witness ever been prosecuted under this statute?

George L. Waas:

I am not aware of any, Your Honor.

John Paul Stevens:

Has the statute ever been construed by the Florida Supreme Court?

George L. Waas:

I believe there has been… there is one case cited in our reply brief which addresses what this statute means.

And it says–

John Paul Stevens:

Did it involve a witness?

George L. Waas:

–Excuse me?

John Paul Stevens:

Did it involve a… a disclosure by a witness or by an… some of the other people?

George L. Waas:

I believe it was in a… in a generalized discussion.

I don’t believe it involved–

John Paul Stevens:

Because, you know, I didn’t realize it before, but as I read the statute one could interpret it as not even applying to witnesses.

John Paul Stevens:

If… it has a list of kinds of people who appear before a grand jury and any other similar–

George L. Waas:

–Or any other person, I believe it says.

John Paul Stevens:

–and it doesn’t really… and one could read it as just not even imposing any prohibition against witnesses.

I know the Eleventh Circuit didn’t so construe it, and we are probably bound by that construction.

George L. Waas:

Yes, Your Honor.

The interpretation that has been given is that any other person means witnesses.

John Paul Stevens:

Been given by the Eleventh Circuit.

George L. Waas:

That is correct.

John Paul Stevens:

But no Florida judge–

George L. Waas:

And the district court as well.

John Paul Stevens:

–But no Florida judge, no state judges have ever applied it to witnesses.

George L. Waas:

No, I am not aware of any Florida courts applying it.

I would like to reserve the balance of my time for rebuttal.

Thank you.

William H. Rehnquist:

Very well, Mr. Waas.

Mr. Thomas.

Gregg Darrow Thomas:

Mr. Chief Justice, and may it please the Court:

Almost four years ago Mike Smith was compelled to do what citizens in our society should rarely be compelled to do.

He was compelled to remain silent, silent about information he had personally gathered, lawfully, by himself, and then surrendered to the grand jury.

Silent not for–

Antonin Scalia:

Excuse me, I thought we just went over that.

I… I thought that he could have disclosed whatever he wanted to disclose, except the fact that he disclosed it to the grand jury.

Gregg Darrow Thomas:

–Your Honor, the problem with that is–

Antonin Scalia:

And that is what this whole fight is about.

Your client wants to be able to say not only is all this true, but I told it to the grand jury.

That… that’s what has brought you here.

Gregg Darrow Thomas:

–Your Honor, certainly that is true, but also the problem with the ability to put into column A what he learned or knew before the grand jury and what he learned as a result of the grand jury, and differentiate that so he is not prosecuted criminally for his speech.

The problem is, he goes into a grand jury proceeding and he may be there for several hours.

When he leaves the grand jury he may not be able to say well, what I learned as a result of that is A, and what I knew when I went in is B.

So–

Antonin Scalia:

What he learned from the questions that people asked him?

Gregg Darrow Thomas:

–Yes, Your Honor.

There are certainly things he learned from the questions they were asking.

William H. Rehnquist:

How does one learn things from the questions that are asked you?

By having your memory stimulated?

Gregg Darrow Thomas:

Well, certainly, Your Honor.

Also by the tone of the question or the import of it.

Where the question was going.

I mean, it may indicate that the grand jury was interested in something here.

Byron R. White:

Well, don’t you… don’t you agree that, or do you, that your client wants to reveal not only his testimony but the questions?

Gregg Darrow Thomas:

Yes, Your Honor, he does want to reveal the questions too.

Anthony M. Kennedy:

Do you agree with the interpretation of the statute that was given to us by the petitioners’ attorney, that you… a witness can disclose the substance of his testimony, not by reference to the fact that it’s testimony, but he can tell everything that he knows independently by the transaction?

Gregg Darrow Thomas:

Your Honor, certainly if that was the case that statute would be grossly unconstitutional.

Here there is intent by the state to limit what the statute means in one point and then broaden it in another.

I think the breadth is at the point where the state says what covers the identities of grand jurors.

How could… how could the testimony, content or import of it, ever cover the identities of grand jurors?

Antonin Scalia:

Just a minute.

Was that a yes… excuse me.

Was that a yes to that question?

Gregg Darrow Thomas:

I’m sorry, Justice Scalia.

Antonin Scalia:

Do you agree with that interpretation or not?

Gregg Darrow Thomas:

Yes, Your Honor.

Anthony M. Kennedy:

And has it, has the state ever argued to the contrary before a Florida state court?

Gregg Darrow Thomas:

Your Honor, there is no definitive interpretation of the statute in Florida state court.

They have asserted that the statute means more than that in this proceeding below.

Anthony M. Kennedy:

The state has?

Gregg Darrow Thomas:

Yes, Your Honor, that is, by the breadth that I just mentioned, the identities of the grand jurors and comments made.

Sandra Day O’Connor:

Well, they said… Mr. Waas said here this afternoon that the statute did not prohibit Mr. Smith from saying who the identities of the grand jurors were if he knew them.

Gregg Darrow Thomas:

Your Honor, that is definitely contrary to the assertion that they made in their briefs.

Unless I have misread them now for the two and a half years we have been in this litigation, I thought that the state had always contended that the identities of the grand jurors were important factors in this case.

Sandra Day O’Connor:

Well, didn’t you hear his response this afternoon to my question?

Gregg Darrow Thomas:

Yes, Your Honor, I did.

And I guess I am a little bit baffled by it.

It’s a concession that I think is appropriate given the nature of the statute.

Sandra Day O’Connor:

Well, what are we arguing about here?

The right of your client to disclose the questions that were asked of him before the grand jury, and that’s all?

No, and the answers.

Gregg Darrow Thomas:

And the answers, Your Honor, and the ability to say I testified.

Sandra Day O’Connor:

Well, to the extent… well, I thought Mr. Waas said that he could reveal, under the statute, that he had been called to testify before the grand jury?

Gregg Darrow Thomas:

Yes, Your Honor, but he will not concede the fact that a person can say I testified before the grand jury to the following.

It’s… if he compartmentalizes it… that… you say I testified before the grand jury, and then later you say what the substance of your testimony is.

Here it is vitally significant that a witness before a grand jury at some time be able to say I testified to the grand jury the following.

If I can give Your Honors a hypothetical of that.

Let’s suppose a victim to a violent crime appeared before a grand jury.

She testified as to the identity of her assailant unequivocally.

There was no true bill returned, and later she found out that the foreman of the grand jury was the nephew of the assailant.

That person, in our society, should be able to stand up at some point and say I testified before the grand jury.

I told them who the assailant was.

They refused to indict, and it was because there was a conflict of interest between the foreman and the assailant.

That sort of speech is, as Your Honors have recognized in cases like Wood v. Georgia, absolutely critical.

In 1962, I believe you said in Wood v. Georgia, that the grand jury does not function in a vacuum.

It is not an isolated body, but rather an institution about which people should speak and speak often.

William H. Rehnquist:

What is it that you can’t do under the interpretation of the Florida statute that we now have before us from your opponent, of the things you just said?

Gregg Darrow Thomas:

I testified, Your Honor, that… and identified the assailant who was.

It’s the combination of those, Your Honor, that the state finds offensive.

You can release the information, the state concedes that.

But you just can’t put the label I testified on it.

Antonin Scalia:

We have rules of Court governing what our law clerks can generally disclose, and it’s darn little.

And there are, I suppose, professional sanctions that might be imposed should a law clerk violate the confidence of the Court.

Now, I can’t really say that every single item of information that that general policy of confidentiality covers would harm the Court if it were disclosed, but we have a general rule.

Antonin Scalia:

Now, I’m sure that nothing very significant is withheld by that, but is it your contention that we would have to justify case by case every instance in which a law clerk is prohibited from disclosing the confidential doings of the Court?

Gregg Darrow Thomas:

Your Honor, as a former law clerk, I know the oath.

But I don’t think that… there there’s probably not a compelling need.

This institution functions in, and it functions at times in a secret sense, but I don’t think that the occasional leaks that occur from this Court diminish the Court, just as it wouldn’t diminish the value of the grand jury proceeding in Florida.

Antonin Scalia:

Oh, so you would extend the same rule to here, then, I gather, that each individual restriction has to be justified.

We just can’t have a general rule.

Gregg Darrow Thomas:

Your Honor, I think there is a problem with a general rule, and especially if it is a permanent and absolute ban on speech like this one.

Antonin Scalia:

Well, we better be very careful then.

I… I see this case in a new light.

Gregg Darrow Thomas:

Well, Your Honor, just like–

Anthony M. Kennedy:

Can grand jurors be forbidden from disclosing the testimony?

Gregg Darrow Thomas:

–Your Honor, grand jurors are in a totally different setting than Mr. Smith.

Anthony M. Kennedy:

Why?

Gregg Darrow Thomas:

Mr. Smith comes into this proceeding having the information that is requested.

The grand juror comes as essentially a clean slate.

The grand juror is essentially the functionary of the state.

He is the prosecutor, as a citizen prosecutor, to decide what… whether someone should be indicted.

Anthony M. Kennedy:

Well, suppose your same hypothetical.

Somebody else on the jury says we heard this testimony and they didn’t indict because the foreman was a cousin of the witness.

Gregg Darrow Thomas:

Your Honor, I think–

Anthony M. Kennedy:

Same horrible hypothetical.

Gregg Darrow Thomas:

–Your Honor, the sting that that has is that it’s someone inside the grand jury itself.

Anthony M. Kennedy:

Well, doesn’t that make it all the more credible?

Gregg Darrow Thomas:

Your Honor, it does, and that is why this Court can restrict the First Amendment speech to a grand juror to a much greater extent than it can to a witness.

The witness in the grand–

Anthony M. Kennedy:

We restrict the most credible speech and not the least credible speech?

I thought it was the opposite.

Gregg Darrow Thomas:

–Well, I thought the most credible speech here, Your Honor, would be the witness, the victim.

The grand juror would be someone who would have heard that.

Moreover, Your Honor–

Anthony M. Kennedy:

Well, we’re quibbling about the hypothetical.

I still am not sure why it is that you draw the line between the grand juror and the witness.

Gregg Darrow Thomas:

–Your Honor, I think because the grand juror hears all the testimony.

It hears not only Mr. Smith’s testimony, but hears every other witness, and it deliberates on it.

Anthony M. Kennedy:

So if you had three witnesses, they could all testify, but not the grand juror?

Gregg Darrow Thomas:

Yes, Your Honor.

I think that the grand jury and the secrecy attendant to it is the secrecy of the body itself, the deliberative process, the decision-making process, the voting proces, and not the witnesses who come from the outside.

Essentially here Mr. Smith comes before this grand jury and reveals all the information that he knew.

He does so and provides the grand jury with all that information which was essential.

Byron R. White:

And what if a reporter… your client is a reporter?

Gregg Darrow Thomas:

Yes, Your Honor.

Byron R. White:

He gives his testimony and he… the grand jury… the state wants to know where he got his information.

He says well, I have confidential informants.

And the issue is government corruption.

And he has information that he believes, he has used this informant in the past and he is found to be reliable, but he won’t… say who it is.

Gregg Darrow Thomas:

Your Honors’ decision I think in Branzburg v. Hayes decided that question, Your Honor, almost 16 years ago.

Byron R. White:

I just want to know what your… do you think the state has an interest then in not having him reveal his testimony?

Gregg Darrow Thomas:

No, Your Honor.

I think the state has an interest in him revealing his testimony.

I think that, as this Court said in Branzburg, you need every man’s testimony.

The fact that Mr. Smith was a reporter, you’ve gotten his testimony in this case.

But now the attempt to throw an enormous shroud of secrecy over that, I think that’s what’s offensive in this case and distinguishes it markedly from the situation in Branzburg.

If we look at the justification–

Antonin Scalia:

What about confidential advice to the President?

Suppose Congress wants to find out what one of the President’s closest advisors counseled him?

I thought there was a privilege for that.

Does that privilege have to be examined item of information by item of information, or can you just say it’s all privileged, similar to what Florida has done with the grand jury testimony?

Gregg Darrow Thomas:

–Your Honor, if the person that you are speaking of is a member of government and has acquired information as a government employee, then I think that a greater degree of breadth of secrecy could be imposed.

But here, when you have a citizen who has essentially hailed from the street, gathered his information not in a governmental or security defense environment, but just he viewed something happening, or as a reporter he gathered the information as any reporter would, and then to silence him is the offensive part of this statute.

Antonin Scalia:

I agree that the interest may be different, but it doesn’t seem to me that we’re constrained by our First Amendment law to apply a piece-by-piece approach as you are urging upon us.

Antonin Scalia:

That if… if the state cannot demonstrate that this particular item of information would damage the grand jury, then that is no good.

And then we move on to the next piece of information.

If that wouldn’t damage the grand jury then that is no good.

It seems to me that it’s possible to have a reasonable general rule.

Gregg Darrow Thomas:

Well, Your Honor, the problem is… with general rules… is here the chilling effect is substantial in its breadth.

Your Honors have traditionally said in First Amendment cases that there needs to be a narrow tailoring.

There needs to be some attempt by the legislature to pick out individual items which are critical to the compelling interest of the state or the state’s interest of the highest order.

Here the state makes no effort to do that, to disseminate what it is that is critical to the release of grand jury information.

They didn’t draft a statute that said you shall not release the target of a grand jury investigation until that person is released.

They attempted to silence all speech, and I think that the possibilities for abuse in this area are substantial, and they are particularly so not only because Mr. Smith is a citizen, but because he is a reporter.

Certainly that distinction here is not determinative of your decision.

But if Mr. Smith is engaged in investigative reporting, finds out all sorts of information and hasn’t published it, is brought before a grand jury and then given, as Your Honors have said, the light tap on the shoulder of the prosecutor on the way out, saying don’t reveal any of this information, it is particularly problematic.

Byron R. White:

You don’t make a distinction between the reporter and the… any other citizen, do you?

Gregg Darrow Thomas:

No, Your Honor, the same First Amendment privilege here would apply equally.

Byron R. White:

So, if your reporter finds… knows that there was a witness who testified before the grand jury and he talks to him, the witness should be able to tell the reporter that, without violating this statute you think, that yes, I testified and here is what I said.

Gregg Darrow Thomas:

Your Honor, I think that puts us right in the middle of Landmark Communications sort of territory and not in the situation that we’re in now.

Certainly the release by the witness to another person is Landmark Communications and your decisions in Daily Mail.

Anthony M. Kennedy:

Is the state’s interest in preventing targets from becoming fugitives substantially satisfied because in many cases they make the arrest before the indictment, before the grand jury proceeding?

Gregg Darrow Thomas:

Your Honor, certainly they make arrest prior to the indictment, but I think this Court affirmed, I think it’s called Worrell Newspapers v. Westhafer, you affirmed a Seventh Circuit decision, although you didn’t ride on it, where there was a statute that permitted… that prohibited anyone from revealing the fact that a sealed indictment had been returned against an individual.

The state’s interest there, and Indiana asserted, was that until the information… until the defendant was in custody there was a problem about the release of that information.

This Court said that publication about that was offensive to the First Amendment.

So, even if the state interest asserted was simply an interest that you couldn’t speak about it until the targeted defendant was arrested might not be substantial under Your Honor’s previous decisions.

Byron R. White:

Well, I gather then that you wouldn’t object to preventing your client from publishing this story while the grand jury was still in session?

Gregg Darrow Thomas:

Your Honor, I don’t think I’d concede that.

I think the Eleventh Circuit, Judge Vance, decided exactly what they needed to.

We were in a situation where it was after the period of time that the grand jury–

Byron R. White:

Well, what is your position?

Do you have a position on that?

Gregg Darrow Thomas:

–Yes, Your Honor.

My position is that while the grand jury is going, this Court would have to establish a compelling need to silence a witness, even during the term of the grand jury.

Byron R. White:

What about… what’s your position about your client publishing what he learned before the grand jury, if he did learn anything?

Gregg Darrow Thomas:

Your Honor, I think he should certainly be able to publish what he learned.

This statute doesn’t prohibit that, and besides that, Your Honor, he is an incidental party to the grand jury.

If the grand jury knows that that’s the rule, as I am sure they do in the Federal system, they restrict their speech not to reveal information which is of vital importance.

Byron R. White:

Well, he can… after… I take it that you would say that even during… when the grand jury is still in session, if he knows who a witness is or has been before the grand jury, he can talk to that witness and that witness, as you say, is free to, you think, to talk during… and so your client learns that testimony and he publishes it.

Gregg Darrow Thomas:

Yes, Your Honor, and that’s–

Byron R. White:

Either during the grand jury or after it.

Gregg Darrow Thomas:

–Yes, Your Honor, and that’s certainly the way it is in the Federal system.

If we look for the last 44 years, since 1946, this Court and 37 other states have permitted a witness to leave the grand jury room and immediately essentially give a press conference on the courthouse steps.

Federal courts and Federal prosecutors prosecute such things as RICO violations and national security matters and the most egregious and heinous of crimes, and they do it all with the witness free to speak.

The commentators, legal commentators or Federal prosecutors or judiciary have made no move, and I don’t think there is anything pending before Your Honors to–

Byron R. White:

Well, the witness might be able to do that, but you wouldn’t contend that the prosecutor–

Gregg Darrow Thomas:

–No, Your Honor.

Byron R. White:

–or the reporter.

Gregg Darrow Thomas:

No, Your Honor.

As with Justice Kennedy’s question, those people inside the grand jury room, hearing all the testimony and motivating the progress of the grand jury, are in distinctly different situations than the witness who comes outside and gives information.

Antonin Scalia:

Mr. Waas, what did it mean in 1791, or do you know what the common law was?

Do you agree with… I’m sorry, Mr. Thomas.

Do you agree with Mr. Waas as to what the situation was at common law?

Gregg Darrow Thomas:

Yes, Your Honor, I think I do.

Antonin Scalia:

That is, you could… you could disclose everything unless you were put under oath?

Gregg Darrow Thomas:

Yes, Your Honor, I think that’s the way common law is.

And I think if we look at the history, the history is interesting because it does not indicate a need to silence the individual citizen.

The integrity and secrecy of the grand jury has always been focused on the deliberative process and the voting process, and not the individual witness coming from the outside.

Anthony M. Kennedy:

Any indication that that oath survived the term of the grand jury?

Gregg Darrow Thomas:

Your Honor, I do not know the answer to that question.

John Paul Stevens:

May I ask you to go back to the question that your opponent was asked at the beginning of the argument about whether the statute applies to the content of testimony when the… when the former witness doesn’t say “and I so testified”, but just talks.

What was the… I just looked again at the district court opinion, and he seems to have read the statute as prohibiting disclosure of the content even if there was no reference to the testimony… the fact that it was in testimony.

Was that the way it was construed in the district court?

Because he talks about it as a severe infringement on rights under the First Amendment, and that is why I read it that way.

Gregg Darrow Thomas:

It’s she, Your Honor.

It’s Judge Kovacovich in the middle district.

I see.

Gregg Darrow Thomas:

I think the construction by the district judge was very broad.

It went beyond the state’s more limited position that’s taken here.

John Paul Stevens:

And did the state take that position in the district court, do you know?

Gregg Darrow Thomas:

Your Honor, I’m not certain whether they did or not, and I think that the state’s position here is refined after reading Your Honors decision in Seattle Times v. Rhinehart where you unequivocally said that if you gained it from some other source there is no way that you could ever prohibit it.

John Paul Stevens:

Because even the court of appeals opinion is somewhat ambiguous on that point.

That’s why a number of us asked that very question.

Gregg Darrow Thomas:

Yes, Your Honor, the Eleventh Circuit decision is ambiguous, and I take it to mean that you can simply talk about everything that happened in that proceeding.

Your Honor, if you look, interestingly, at Rule 6(e), it has language which is totally different than the Florida statute.

It says… it identifies all the individuals and then it says

“shall not disclose matters occurring before the grand jury. “

Well, that’s… that’s twice, three times as broad as Florida is.

Matters occurring before the grand jury include questions, answers, comments by grand jurors, statements by prosecutors, evidence produced.

It’s the whole gamut.

And in fact what Florida has tried to do is focus specifically on testimony and not that broader purview.

In conclusion, Your Honors, I believe only in the most extraordinary circumstances should the state be permitted to silence its citizens.

This is particularly true when the citizen is hailed from the street by subpoena and forced to surrender information lawfully possessed by him.

The Constitution does not permit the state to interrogate its unwilling witnesses and then silence them.

And as Justice White said in Branzburg, we do not expect courts will forget the grand juries must operate within the limits of the First Amendment.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Thomas.

Mr. Waas, you have four minutes remaining.

George L. Waas:

Thank you, Mr. Chief Justice.

It appears from the argument pressed by Mr. Smith that there are now categories of participants, and depending upon the categorization of participants, different rights ought to flow.

I don’t read Landmark, particularly the commentary in one of the early footnotes that specifically identify witnesses as participants, as creating a classification of participants separate and apart from the others.

In fact, without witnesses, I dare say the other participants in the grand jury process would have little if anything to do.

Witnesses lie at the heart of the grand jury process.

And I don’t believe that there ought to be a categorization of witnesses, either witnesses from other participants or a distinction between subpoenaed witnesses and voluntarily appearing witnesses.

George L. Waas:

With respect to the Federal system, as was pointed out earlier, even though the Federal Government has made a particular policy choice, that doesn’t mean that that represents the most effective choice as viewed from other or by other jurisdictions.

There is no evidence in the record that establishes that the choices made by the other states and the one made by the Federal Government are more effective or as effective than the choice made by the State of Florida.

With respect to the identification of testimony, once it is identified as to what testimony is revealed before the grand jury, we at that point know what the specifics of the investigation undertaken by the grand jury are.

It’s no longer subject to conjecture or speculation.

It is subject now to public knowledge.

And the effect of that, the State of Florida has determined, weighs more heavily with respect to preserving the interest of the criminal justice system than any putative First Amendment claim may weigh with respect to Mr. Smith and other witnesses.

And I think that–

Antonin Scalia:

I suppose if we said that the witness can say that he appeared before the grand jury and he said thus and so, there would be very little reason for Florida to prohibit anybody else from saying that he appeared before the grand jury and said thus and so.

I mean, the rest of Section 905.27 wouldn’t make must sense.

It says a grand juror, state attorney, nobody else can disclose the testimony.

But if you let the witness himself go out and say this is what I testified, why should you prevent anybody else from–

George L. Waas:

–Yes, Your Honor, that’s my point.

That’s my point.

And that is once the door is open on a First Amendment ground–

John Paul Stevens:

–Yes, but there’s a big state interest in protecting the witness in many cases, and lots of times a witness isn’t going to tell.

And if you put the prohibition on everybody else, that protects the witness.

Just because the witness decides to open the door doesn’t mean you ought to let everybody else open the door.

George L. Waas:

–That may be true, except that in the First Amendment context it is not so much who is doing the disclosure, but what is disclosed.

That’s–

John Paul Stevens:

Well, certainly it is, because if the witness fears for his life, he is not going to disclose.

And the only way to protect that is to say nobody else can disclose.

George L. Waas:

–That is correct.

But if that witness’ name happens to be uttered by a member of the grand jury, and the reporter witness–

John Paul Stevens:

But nobody is questioning the validity of the statute as applied to grand jurors, court reporters, stenographers, everyone else.

The only question is whether a witness can take this risk if he wants to.

George L. Waas:

–That’s correct.

That’s the issue here.

Thurgood Marshall:

What will happen if grand jury, five years later, calls this man.

Can he testify?

Is he bound by the statute?

George L. Waas:

If, five years later, he is called to testify, he would not be able to disclose the fact that he testified before the grand jury with respect to the testimony that he imparts to the grand jury.

Thurgood Marshall:

Isn’t that rather silly?

[Laughter]

George L. Waas:

Well, Your Honor, if you’re looking at a time constraint–

xxx.

George L. Waas:

–Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Waas.

The case is submitted.

The honorable court is now at recess until four o’clock this day.