Gov. Ron DeSantis is calling for the prosecution of those who leaked a grand jury report. The report alleged the DeSantis administration misappropriated $10 million for the Hope Florida Foundation. A state appellate court ordered the grand jury report to be expunged after it was leaked to the press. First Amendment experts say the press is likely protected from prosecution for publishing the leaked information. Gov. Ron DeSantis is calling for the prosecution of the people responsible for leaking a then-sealed report , alleging the governor's administration "misappropriated" $10 million from a Medicaid settlement to the Hope Florida Foundation.
But the extent to who can be prosecuted for this leak could fall under the First Amendment.
The governor commented on the report at a Miami press conference Oct. 8, a day after a state appellate court ordered that the grand jury report be expunged . The report was first reported by CBS News Miami's Jim DeFede in late August, which then was followed by extensive coverage by other news outlets.
What's unclear is to what extent the state could prosecute for a grand jury report leak. During the press conference, when asked what people he planned to hold accountable, the governor said, "whoever leaked this report needs to be prosecuted."
"If you leak the report, you violate the law knowingly, willfully or at least recklessly," DeSantis said.
Attorney General James Uthmeier said law enforcement is still reviewing the matter. But, he added, if a violation of law "crosses over circuit lines," it could involve the statewide prosecutor's office.
"Which is very possible given CBS Miami engaging in perpetrating the fraud," Uthmeier said.
The controversy involved the foundation supporting Hope Florida, an initiative spearheaded by Florida First Lady Casey DeSantis, and prompted outrage by Florida House GOP lawmakers, who questioned the legitimacy and transparency of the DeSantis administration.
The investigations not only became a main talking point by Democrats in elections, but led to delays in Senate confirmations by those involved but also potentially wrecked the first lady's ambitions to succeed her husband as Florida governor .
Comment is pending from the governor and attorney general's office on whether the state plans to pursue charges against CBS News for their initial reporting. But if so, that opens the door to First Amendment scrutiny.
A person under a "direct duty of grand jury secrecy" is held to a different standard than of the press or someone with no duty to secrecy, said Lawrence Walters, a First Amendment attorney based in Longwood, near Orlando.
But the governor's comments are much broader than that. If the state investigates and prosecutes more parties than the people who swore a secrecy oath and leaked the report, then the First Amendment could block those efforts, since it forbids treating the report's publication or disclosure to the press as a crime, Walters said.
"If the state has a suspect who swore a secrecy oath and broke it, that is a narrow case with real proof problems and real constitutional limits," Walters said. "A generalized threat to prosecute 'whoever' spoke to the press is something else."
Doing so chills lawful reporting about the use of settlement funds in a political campaign, which is the speech the First Amendment exists to protect."
The report, leaked on Aug. 26, described the $10 million transfer from the Medicaid settlement as part of a "sophisticated scheme to fund political activities ," but it also concluded there wasn't enough evidence for criminal charges.
The report said this money was transferred to the Hope Florida Foundation in October 2024, and then a bulk of this money made it to political committees , including one headed by Uthmeier to combat the recreational marijuana ballot measure.
A 19-page ruling by the 1st District Court of Appeal criticized the report's leak to the press, saying State Attorney Jack Campbell was at fault for an "over-broad handling of a confidential document" in January. Campbell oversaw the proceedings, but he also has denied the grand jury report's existence for months.
It's unknown who sent CBS News the grand jury report, but the person may not have full whistleblower protections since true whistleblowers follow certain procedures to receive legal protection, said Kevin Goldberg, a First Amendment attorney and expert at the Freedom Forum.
Specifically, a whistleblower would need to give the document for a clear legal reason, "no matter how justified they might feel in doing it."
Even if the people who leaked the report are found guilty of unlawfully releasing secret information, the press would still be protected by Supreme Court precedent, said Gary Edinger, a First Amendment attorney in Gainesville.
Edinger said the Supreme Court has previously protected the press when publishing truthful information that they knew was illegally leaked by a source. Authorities can punish the person who leaked it, however.
"Here, someone ... may get in trouble for leaking the grand jury report," Edinger said. "However, there is absolutely nothing wrong with the press reporting extensively on the leak. That's why we have a free press."
Stephany Matat's role covering First Amendment issues at the USA TODAY Network – Florida is made possible by a collaboration among Freedom Forum, Journalism Funding Partners and the USA TODAY Network. Freedom Forum does not provide editorial input. Reach Matat at smatat@usatodayco.com and @StephanyMatat on X.
Stephany Matat
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