45 F.4th 1272
11th Cir.2022Background
- Alabama’s grand jury secrecy scheme (Ala. Code §§ 12-16-215–216, enacted 1975) bars grand jurors, witnesses, and reporters from revealing evidence, questions, answers, testimony, deliberations, or other matters that occurred "within or before" a grand jury; violations are felonies.
- William (Bill) Henry, an Alabama state representative, learned alleged grand-jury leaks and believed Deputy AG Miles "Matt" Hart engaged in prosecutorial misconduct; Henry was later subpoenaed and testified to a Lee County grand jury investigating Speaker Mike Hubbard.
- Henry wanted to speak publicly about what he knew and about his grand jury testimony but feared prosecution under § 12-16-216; a recording showed the Deputy AG describing grand-jury secrecy as "shut[ting] you down."
- Henry sued the Attorney General under § 1983 asserting First Amendment facial and as-applied challenges to § 12-16-216 (and related secrecy provisions); the district court held § 12-16-216 unconstitutional as to information Henry learned before testifying but constitutional as to information he learned only by being a witness.
- The Eleventh Circuit reviewed de novo, applying the Supreme Court’s Butterworth balancing test for grand-jury witness speech: balance the witness’s First Amendment interest against the state’s interests in grand-jury confidentiality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 12-16-216 prohibits a witness from disclosing information he knew before testifying | Henry: statute is vague/overbroad and could be read to criminalize disclosure of prior knowledge, like Florida statute in Butterworth | AG: statute is focused on secrecy of matters that "occurred or taken therein" and does not reach information obtained outside the grand jury | Court: § 12-16-216 reasonably construed to cover only evidence, questions, answers, testimony, and conversations that occurred in the grand jury; reversed district court’s holding that it covered prior knowledge |
| Whether § 12-16-216’s ban on disclosure of information learned only by virtue of being a witness violates the First Amendment | Henry: his core First Amendment interest in exposing alleged governmental misconduct outweighs confidentiality interests | AG: state’s substantial interests in witness cooperation, truthful testimony, protecting third parties, and preserving information the state created justify confidentiality | Court: applied Butterworth balancing and held the state’s interests outweigh Henry’s speech rights for information acquired only as a grand-jury witness; affirmed district court judgment for AG |
| Standing to challenge § 12-16-216 | Henry: enforcement threat is real given warnings from Deputy AG and AG’s position | AG: no intent to enforce as feared; challenge speculative | Court: Henry has Article III standing—statute and Deputy AG’s statements objectively chill his speech and injunction would redress injury |
| Appropriate standard of review for content-based secrecy regulation | Henry: statute is content-based so strict scrutiny applies | AG: Butterworth balancing applies to grand jury secrecy claims | Court: Butterworth’s specific balancing test governs grand-jury witness challenges (not strict scrutiny) |
Key Cases Cited
- Butterworth v. Smith, 494 U.S. 624 (1990) (Supreme Court balancing test: protect pre-testimony speech but allow confidentiality for information obtained through grand-jury participation)
- Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211 (1979) (identifies core grand-jury secrecy interests: witness cooperation, candor, preventing flight/influence, protecting reputations)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (First Amendment limits on subpoenas and investigative secrecy principles cited by Butterworth)
- United States v. Williams, 553 U.S. 285 (2008) (statutory-construction and overbreadth framework)
- Pitch v. United States, 953 F.3d 1226 (11th Cir. 2020) (reinforces long-standing policy favoring grand-jury secrecy even post-investigation)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing tripartite test applied)
- Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) (objective-chill test for First Amendment standing)