What can reporters report about grand jury testimony?

At a time when reporters are being subpoenaed to appear before grand juries in at least five cases, including one grand jury investigating who leaked the name of CIA operative Valerie Plame to the press, it warrants examining what, if anything, journalists can report after they’ve testified.

“The issue right now is ripe, because we have . . . reporters [possibly] going to jail for refusing to testify before the grand jury,” said media lawyer Gregg D. Thomas of Holland & Knight, who represented a reporter in the 1990 Butterworth v. Smith case.

In Butterworth, the U.S. Supreme Court ruled that journalists — like any other witnesses — have a First Amendment right to publish the details of their grand jury testimony once the investigation has ended.

Newspaper reporter Michael Smith was summoned to testify before a grand jury after he wrote articles about alleged wrongdoing by the prosecutor’s office and sheriff’s department of Charlotte County, Fla. Smith was warned that Florida law prohibited grand jury witnesses from ever disclosing their testimony in any way, and that a violation could result in criminal punishment.

Smith planned to write a story and perhaps a book about the investigation, including his own testimony and experiences before the grand jury. He sued in federal court to win a declaration that the state law prohibiting his disclosure unconstitutionally restricted his freedom of speech. He also sought an order preventing the state from prosecuting him.

The federal district court threw out his case, ruling that a total and permanent ban on disclosure of witness testimony was necessary to ensure the proper functioning of the grand jury. The U.S. Court of Appeals in Atlanta (11th Cir.) reversed. The U.S. Supreme Court affirmed the appeals court, agreeing that the reasons for preserving grand jury secrecy did not warrant prohibiting witnesses from ever disclosing their testimony.

“[T]he interests advanced by the portion of the Florida statute [preventing witnesses from revealing their own testimony] . . . are not sufficient to overcome [Smith’s] First Amendment right to make a truthful statement of information he acquired on his own,” the Supreme Court concluded.

Although the high court specified that witnesses are free to talk once the grand jury has ended its investigation, Thomas said he believes it would have ruled the same way if the grand jury in his client’s case had still been in session. He pointed out that the rule governing federal grand jury secrecy — Rule 6(e) — places no restriction on witnesses.

“Which means that if you’re a witness before a federal grand jury, and you’re not related to the government — you’re just sort of a lay witness — you can immediately leave and discuss what happened before the grand jury,” he said.

The Supreme Court also limited its holding to the disclosure of witness “testimony,” declining to decide whether witnesses may talk about their “experience” before the grand jury. But Thomas said he thinks such speech would be protected.

“I absolutely think the First Amendment protects that — that is, what it felt like being before a grand jury, what the questions were that were asked by the grand jury. I think the First Amendment protects that sort of compelled interaction,” he said. “You’re not there on your own, you’re not there as a volunteer, you’re there because the government says you have to be there. And I really think you have the ability to talk about or discuss what your experience was before the grand jury.”

At least one court, however, has narrowly interpreted Butterworth to permit grand jury witnesses to divulge only what they knew before they testified.

In 2003, the U.S. Court of Appeals in Denver (10th Cir.) ruled that a housekeeper for the parents of murdered child JonBenet Ramsey could not disclose anything she learned through testifying before the grand jury in a book she intended to write. In upholding a Colorado admonition to all grand jurors to keep their testimony secret “until and unless” an indictment issued, the court cited the importance of preserving the state’s interest in grand jury secrecy. (Hoffmann-Pugh v. Keenan)

“[W]e are convinced a line should be drawn between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process,” the court said. The U.S. Supreme Court in January declined to review the decision.

Thomas said the issue of reporters disclosing their grand jury testimony could arise in the current climate, noting that a few journalists actually have testified before the Plame grand jury.

“It would be interesting to see what some of those reporters had to say,” he said.