San Jose Mercury News, Inc. v. Criminal Grand Jury

I. Introduction

After a witness has testified before the Criminal Grand Jury in Santa Clara County (Grand Jury), the foreperson gives the witness the following admonition: “You are admonished not to reveal to any person, except as directed by the court, what questions were asked and what responses were given or any other matters concerning the nature or subject of the grand jury’s investigation which you learned during your appearance before the grand jury unless and until such time as the transcript of this grand jury proceeding is made public. Violation of this admonition is punishable as contempt of court.”

Plaintiff, San Jose Mercury News (the Mercury) contends that this admonition is an unjustifiable prior restraint upon speech in violation of the First Amendment of the United States Constitution. We conclude that in the factual context of this case, the admonition is not a prior restraint.

II. Factual and Procedural Background

On September 9, 2003, the Grand Jury began an investigation into allegations of misconduct by a superior court judge. While that investigation was in progress, one of the Mercury’s reporters was outside the Grand Jury room interviewing a…