969 F.3d 883
8th Cir.2020Background
- Doe served on the St. Louis County grand jury that considered the Darren Wilson shooting; she twice swore an oath to keep grand jury matters secret under Mo. Rev. Stat. § 540.080 et seq.
- The grand jury returned a no-true-bill; Prosecuting Attorney McCulloch publicly released redacted evidence and transcripts but did not disclose juror deliberations, votes, or juror identities.
- Doe sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, challenging § 540.320 (criminalizing a grand juror’s disclosure of evidence and witness names) as an as-applied First Amendment violation.
- After initial Pullman abstention, state-court litigation concluded against Doe; back in federal court the district court dismissed several statutory challenges for lack of standing and dismissed the § 540.320 First Amendment claim on the merits.
- The Eighth Circuit assumed, without deciding, that Doe’s proposed speech could be covered by the First Amendment and that she might have waived rights by oath, but reviewed § 540.320 under strict scrutiny and affirmed: the statute is narrowly tailored to a compelling state interest in grand jury secrecy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 540.320 abridges Doe’s First Amendment right to speak about evidence, witnesses, and deliberations learned as a juror | Doe: statute unlawfully restricts her speech about the grand jury proceedings and her views; she wants to correct the public record and discuss juror experience | Missouri: grand jury secrecy is a traditional, compelling state interest; restrictions on disclosures of grand jury evidence and witness identities are lawful | Court: assumed the speech is subject to First Amendment but held § 540.320 survives strict scrutiny as narrowly tailored to a compelling interest; claim dismissed |
| Whether Doe waived First Amendment rights by taking an oath of secrecy | Doe: oath should not strip constitutional protections | Missouri: oath bars disclosure and thus limits Doe’s claims | Court: did not resolve waiver; proceeded to decision under strict scrutiny and upheld the statute |
| Whether the state’s release of some grand jury materials (by McCulloch) defeats Missouri’s secrecy interest and makes § 540.320 underinclusive | Doe: public release of much material undermines the need for continued secrecy and permits her to speak about undisclosed matters | Missouri: limited disclosures did not waive the state’s continuing interest in protecting witness identities, deliberations, votes, and the unindicted; selective release does not eliminate the harm of juror disclosures | Court: disclosures did not eliminate compelling interests; § 540.320 still narrowly tailored and necessary to protect future grand jury functioning |
| Whether § 540.320 is overbroad or underinclusive under narrow-tailoring analysis | Doe: statute sweeps too broadly and is not least restrictive means given partial public disclosures | Missouri: statute is appropriately focused on information obtained by jurors (evidence, witness names, deliberations) and no narrower means exist to protect secrecy | Court: statute is limited to juror-obtained grand jury matters, does not sweep beyond that, and no less restrictive alternative would adequately protect the grand jury’s functioning |
Key Cases Cited
- Butterworth v. Smith, 494 U.S. 624 (holding limits on grand jury witness disclosures implicate First Amendment but recognizing historical secrecy interests)
- Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211 (explaining several distinct interests served by grand jury confidentiality)
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based regulations are presumptively unconstitutional and subject to strict scrutiny)
- McCullen v. Coakley, 573 U.S. 464 (narrow-tailoring/least-restrictive-means requirement for content-neutral restrictions)
- Williams-Yulee v. Florida Bar, 575 U.S. 433 (state compelling interest in preserving integrity of judicial process can justify speech regulation under strict scrutiny)
- Burson v. Freeman, 504 U.S. 191 (rare instance where content-based restriction survived strict scrutiny due to overriding state interest)
- Rehberg v. Paulk, 566 U.S. 356 (describing grand jury confidentiality as vital to proper functioning)
- In re Grand Jury Process, Doe, 814 F.3d 906 (8th Cir.) (discussing grand jury secrecy and its protections)