Henry v. Marshall et al
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) The Plaintiff's 111 Motion for Summary Judgment is GRANTED in part as to the Plaintiff's overbreadth claim; The 111 motion is DENIED as to all other claims; 2) The Defendant& #039;s 103 Motion for Summary Judgment is DENIED as to the Plaintiff's overbreadth claim; The 103 motion is GRANTED as to all other claims in the Complaint; 3) The Plaintiff's request for a permanent injunction as to the enforcement of the Act against Henry is DENIED; 4) The Plaintiff's request for an order releasing the transcripts and audio recordings of Henry's 2014 testimony before a Lee County grand jury is DENIED; 5) The Plaintiff's request for a permanent injunction as to the warnings given to grand jury witnesses is DENIED. Signed by Honorable Judge R. Austin Huffaker, Jr on 3/31/2021. (amf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
WILLIAM E. HENRY,
) Case No. 2:17-cv-638-RAH-JTA
STEVEN T. MARSHALL, in his official )
capacity as Attorney General of the
State of Alabama,
MEMORANDUM OPINION AND ORDER
The question before the court is what a former Alabama grand jury witness
may publicly speak about, after having testified before a grand jury, without
violating the Alabama Grand Jury Secrecy Act, see Ala. Code § 12-16-214, et seq.
(“the Act”). The Plaintiff here, William Edgar “Ed” Henry, is a former member of
the Alabama House of Representatives who testified on January 24, 2014, before a
Lee County grand jury that later indicted former Alabama House Speaker Mike
Hubbard for violations of the state’s ethics laws. Now, Henry wants to speak
publicly about the proceedings, including the details of his grand jury testimony, his
observations and opinions of the proceeding, those involved in it, and what
Henry filed this suit claiming the secrecy provisions of the Act
unconstitutionally deprive him of his First Amendment right to free speech. This
case examines whether those secrecy provisions run afoul of the Constitution in
preventing Henry from discussing: (1) information he knew prior to testifying before
the grand jury (“prior knowledge”) and (2) what transpired in the grand jury room,
including testimony Henry gave and did not give, his personal observations of the
proceeding, and his opinions regarding perceived prosecutorial misconduct (“grand
As explained herein, the court finds that the Act, by virtue of its overbreadth,
does impermissibly violate Henry’s First Amendment right to speak to facts and
matters known to him before he testified before the grand jury—a result compelled
by the United States Supreme Court’s decision in Butterworth v. Smith, 494 U.S.
624 (1990). However, the court also concludes that the Act does not otherwise
violate Henry’s First Amendment rights by prohibiting Henry from publicly
discussing what transpired in the grand jury room, including his testimony before
In 1999, Brad Pitt, Edward Norton, and Helena Bonham Carter starred in the movie Fight Club.
One of the central themes throughout the film was the rule that participants in “Fight Club” could
“not talk about Fight Club.” In a sense, Henry wishes to do just that–talk about his participation
in a secret proceeding; here, the grand jury.
the grand jury, the questions asked of him, the questions not asked of him, the actions
and discussions of the prosecutor, and his personal opinions and observations of the
proceeding and those involved.
A. Mike Hubbard and Ed Henry
Much ink has been spilled in the press and in judicial opinions concerning the
prosecution of Mike Hubbard, the former Speaker of the Alabama House of
Representatives. See generally Ex parte Hubbard, No. 1180047, 2020 WL 1814587
(Ala. Apr. 10, 2020). In October of 2014, a Lee County grand jury indicted Hubbard
on twenty-three counts of violating the Alabama Ethics Act, Ala. Code § 36-25-1, et
seq., and after a four-week trial, a Lee County jury convicted Hubbard on twelve of
those counts. 2020 WL 1814587, at *2. On appeal, the conviction was affirmed on
six of the twelve counts. Id. at *21.
Pertinent to Hubbard’s ethics issues as they involved Henry, Hubbard owned
an interest in Craftmasters, Inc. (“Craftmasters”), a printing business located in
Auburn, Alabama; Hubbard’s hometown. Of his many alleged transgressions,
Hubbard was accused of using his political power to gently suggest that state house
representatives use Craftmasters to print their campaign materials. This, of course,
was violative of the Ethics Act, so the theory went.2
Ed Henry represented Morgan County, Alabama in the state house during the
time period at issue in this case. Henry was elected in 2010, despite Hubbard’s
apparent opposition to his candidacy.
Henry entered the ethics mix involving Hubbard because, following his 2010
victory, Henry’s campaign consultant recommended that Henry use Craftmasters for
his future printing needs.
Following this recommendation, Henry retained
Craftmasters, although Henry vehemently contested that this was a quid-pro-quo or
that improper pressure was used.
B. The Lee County Grand Jury
A few years later, the Alabama Attorney General’s Office began investigating
Hubbard for potential ethics code violations, including issues involving
Craftmasters. A special grand jury in Lee County was empaneled on August 19,
2013, and a twenty-three-count indictment returned against Hubbard on October 17,
2014. Hubbard v. State, Appeal No. CR-16-0012, 2018 WL 4079590, at *4 (Ala.
Hubbard ultimately was found not guilty of a crime for these actions, but instead, was convicted
for, inter alia, obtaining the assistance of a former Business Council of Alabama lobbyist in
acquiring investments in Craftmasters (which was experiencing financial difficulties), also an
apparent criminal violation of the Ethics Act.
Crim. App. Aug. 27, 2018). Leading the grand jury endeavor was Matt Hart, a
prosecutor with the Attorney General’s office.
C. The Leaks
Like any scandal involving elected officials, intrigue and innuendo abounded,
and those with the inside-know were in short supply due to the confidential nature
associated with an on-going grand jury proceeding. One person claiming inside
knowledge of the grand jury proceeding was an Alabama state representative, who
would occasionally call Henry to discuss the happenings inside the grand jury room.
Believing that this representative—and others—were receiving information
via improper leaks from Matt Hart as a means of undermining Mike Hubbard, Henry
spoke with Mike Hubbard’s criminal defense attorney about the leaks. Hubbard’s
counsel then notified the U.S. Attorney’s Office and told Matt Hart about it as well.
Following Henry’s conversations with Hubbard’s attorney, Henry was
subpoenaed to appear before the grand jury.
D. Henry’s Grand Jury Testimony
Henry appeared before the grand jury on January 24, 2014. At the outset of
Henry’s testimony, Hart warned Henry about the need to tell the truth and
emphasized the secrecy of the proceeding itself and of Henry’s testimony. Aside
from testifying to subject matters related to Hubbard’s ultimate indictment, near the
end of Henry’s testimony, Hart gave Henry warnings about the Alabama Grand Jury
Secrecy Act, again reinforcing the secrecy of the proceedings and of Henry’s
testimony. Hart also warned Henry of the criminal penalties associated with
violations of the Act.
Henry claims that the tone of Hart’s warnings was very imposing and
ominous. Henry also alleges that Hart acted in an intimidating manner.
E. Events After Henry’s Grand Jury Testimony
After his testimony before the grand jury, Henry learned of a recording,
released on www.al.com, of a conversation between Hart and radio host and local
attorney, Baron Coleman, that occurred on January 23, 2014. In that conversation,
Hart apparently told Coleman that “we are on utterly solid ground shutting people
up” by bringing witnesses before the grand jury, due to the Act’s “very broad
prohibition” on disclosure of information from inside the grand jury room.
Based on Hart’s warnings in the grand jury room and Hart’s statements in the
recording, Henry believes that he was subpoenaed by Hart for the sole and improper
purpose of preventing Henry from disclosing his knowledge about the grand jury
leaks and discussing in a public forum what Henry believes were Hart’s lies to the
After the indictment, Hubbard and his defense attorneys raised Hart’s alleged prosecutorial
misconduct in a motion to dismiss the indictment filed in Hubbard’s criminal case in Lee County.
Ultimately, the presiding circuit court judge concluded there was insufficient evidence of
misconduct to dismiss the charges. (See Doc. 109-5.)
On September 25, 2017, Henry filed this lawsuit4 claiming he wants to, but
cannot due to the Act and the threats from Hart, discuss in an open, public forum his
knowledge about grand jury leaks, his communications and dealings with Mike
Hubbard, Matt Hart, and others, his appearance and testimony before the grand jury,
and his observations and opinions concerning perceived prosecutorial misconduct
by Hart in the grand jury room.5 (See Doc. 1.)
Henry brings both facial and as-applied challenges under the First
Amendment to the following provisions in the Act:
1) Ala. Code § 12-16-215, providing in relevant part as follows: “No . . .
past or present grand jury witness . . . shall willfully at any time directly
or indirectly, conditionally or unconditionally, by any means whatever,
reveal, disclose or divulge or cause to be revealed, disclosed or
divulged, any knowledge or information pertaining to any grand juror's
questions, considerations, debates, deliberations, opinions or votes on
any case, evidence, or other matter taken within or occurring before any
grand jury of this state.”
2) Ala. Code § 12-16-216, providing in relevant part as follows: “No past
or present … grand jury witness . . . shall willfully at any time, directly
or indirectly, conditionally or unconditionally, by any means whatever,
reveal, disclose or divulge or endeavor to reveal, disclose or divulge or
cause to be revealed, disclosed or divulged, any knowledge of the form,
nature or content of any physical evidence presented to any grand jury
This matter was reassigned to the undersigned on December 17, 2019. Since that time, Hubbard’s
criminal case reached a final conclusion with a decision from the Alabama Supreme Court on April
10, 2020, see Ex parte Hubbard, No. 1180047, 2020 WL 1814587 (Ala. Apr. 10, 2020). Hubbard’s
Petition for a Writ of Certiorari, filed with the United States Supreme Court, was denied on
February 22, 2021, see Michael Gregory Hubbard v. Alabama, Supreme Court Case No. 20-986.
At the court’s request, the parties have filed a stipulation regarding the various topics and subjects
on which Henry wishes to speak. In reviewing these items, the court groups them into the
aforementioned topics: prior knowledge and grand jury proceeding.
of this state or any knowledge of the form, nature or content of any
question propounded to any person within or before any grand jury or
any comment made by any person in response thereto or any other
evidence, testimony or conversation occurring or taken therein.”
Henry seeks from this court a declaration that the aforementioned provisions
of the Act violate the First Amendment and an injunction against the enforcement of
these provisions against him. Henry further requests that the court order the release
of the transcript and audio recording of Henry’s grand jury testimony and enjoin the
Defendant from providing “inaccurate and misleading warnings to grand jury
witnesses that they can never reveal their grand jury testimony.” (Doc. 1, p. 20.)
The Defendant’s summary judgment briefs note that Counts III and IV target
the enforcement mechanisms of § 12-16-215 and § 12-16-216, rather than assert
actual separate claims. (See Doc. 108, p. 19.) Henry does not dispute that point, and
the court will thus limit its analysis to those two operative sections of the Act.
STANDARD OF REVIEW
Summary judgment is appropriate where the pleadings, depositions, answers
to interrogatories, admissions on file, and any affidavits show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). No genuine issue of material
fact exists if the opposing party fails to make a sufficient showing on an essential
element of his case as to which he would have the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
Just as important, the “mere existence of a scintilla of evidence in support of
the [opposing party’s] position” is insufficient to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In making
this assessment, the court must “view all the evidence and all factual inferences
reasonably drawn from the evidence in the light most favorable to the nonmoving
party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285
(11th Cir. 1997) (citation omitted), and “resolve all reasonable doubts about the facts
in favor of the non-movant,” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of
Am., 894 F.2d 1555, 1558 (11th Cir. 1990) (citation omitted).
The applicable Rule 56 standard is not affected by the filing of cross-motions
for summary judgment. See, e.g., Am. Bankers Ins. Group v. United States, 408 F.3d
1328, 1331 (11th Cir. 2005). “Cross-motions . . . will not, in themselves, warrant
the court in granting summary judgment unless one of the parties is entitled to
judgment as a matter of law on facts that are not genuinely disputed . . . .” United
States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (citation omitted). When
both parties move for summary judgment, the court must evaluate each motion on
its own merits, resolving all reasonable inferences against the party whose motion is
under consideration. Am. Bankers Ins. Group, 408 F.3d at 1331.
A. Differentiating Between Facial and As-Applied Challenges
Although he does little to clearly argue it, Henry apparently brings6 facial and
as-applied challenges to the Act, particularly Ala. Code § 12-16-216, and to a much
lesser extent, § 12-16-215.
“A facial challenge, as distinguished from an as-applied challenge, seeks to
invalidate a statute or regulation itself.” Horton v. City of St. Augustine, Fla., 272
F.3d 1318, 1329 (11th Cir. 2001). “Generally, for a facial challenge to succeed, ‘the
challenger must establish that no set of circumstances exists under which the Act
would be valid.’” Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1302 (11th
Cir. 2013) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Under the
Supreme Court’s holding in Salerno, generally, a law is not facially unconstitutional
unless it “is unconstitutional in all of its applications.” Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008) (citing Salerno, 481 U.S. at 745).
In a facial challenge, the claimed constitutional violation derives from the terms of
the statute, not its application. See Rosenkranz, The Subjects of the Constitution, 62
Stan. L. Rev. at 1229–38. The court’s remedy should therefore be directed at the
Even if he characterized his claims as both facial and as-applied challenges, the court is not bound
by Henry’s designations and looks to the Complaint to determine what claims, if any, his
allegations support. See Harrell v. The Fla. Bar, 608 F.3d 1241, 1259 (11th Cir. 2010) (citing
Jacobs v. The Florida Bar, 50 F.3d 901, 905 n.17 (11th Cir. 1995)).
statute itself and injunctive and declaratory in nature, for a successful facial
challenge results in the statute being invalidated. See Ezell v. City of Chicago, 651
F.3d 684, 698 (7th Cir. 2011).
However, while a plaintiff mounting a facial attack must usually prove “that
no set of circumstances exists under which the [statute] would be valid,” Salerno,
481 U.S. at 745, “(o)verbreadth is an exception to that rule.” Doe v. Valencia Coll.,
903 F.3d 1220, 1232 (11th Cir. 2018) (citing Salerno, 481 U.S. at 745). It is an
exception because of the concern that “the very existence of some statutes may cause
persons not before the Court to refrain from engaging in constitutionally protected
speech.” Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60 (1976); see also
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
In a facial overbreadth challenge, the plaintiff must show that the statute
punishes a substantial amount of First Amendment-protected free speech, “judged
in relation to the statute’s plainly legitimate sweep.” Fla. Ass’n of Prof’l Lobbyists,
Inc. v. Fla. Office of Legislative Servs., 525 F.3d 1073, 1079 (11th Cir. 2008).
“Substantial overbreadth” is not a precisely defined term, but it requires “a realistic
danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court for it to be facially challenged
on overbreadth grounds.” Members of the City Council v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984).
“The first step in overbreadth analysis is to construe the challenged statute; it
is impossible to determine whether a statute reaches too far without first knowing
what the statute covers.” United States v. Stevens, 559 U.S. 460, 474 (2010) (citing
United States v. Williams, 553 U.S. 285, 293 (2008)). Given the threat to freedom
of expression, traditional rules of standing are altered to permit litigants “to
challenge a statute not because their own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute’s very existence may
cause others not before the court to refrain from constitutionally protected speech or
expression.” Broadrick, 413 U.S. at 612. Thus, a statute found to be overbroad is
“totally forbidden until and unless a limiting construction or partial invalidation so
narrows it as to remove the seeming threat or deterrence to constitutionally protected
expression.” Id. at 613. The Supreme Court has recognized the overbreadth doctrine
as “strong medicine” that should be “employed . . . sparingly and only as a last
resort.” Id. Thus, “the overbreadth of a statute must not only be real, but substantial
as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615.
While it is well-established that, in the area of free speech, an overbroad law
may be subject to facial review and invalidation, even though its application in the
case under consideration may be constitutionally unobjectionable, see Forsyth
County, Ga. v. Nationalist Movement, 505 U.S. 123, 129 (1992); Taxpayers for
Vincent, 466 U.S. at 799, because Henry seeks to vindicate his own rights, his
challenge may actually be an as-applied challenge. See Harrell, 608 F.3d at 1259
(noting the Supreme Court’s characterization of a challenge as being “as-applied”
when the plaintiff “alleged that but for the prohibition, he would engage in the
prohibited behavior”) (citing Jacobs, 50 F.3d at 906). But as discussed herein, an
analysis of Henry’s as-applied claim is unnecessary in light of the statute’s facial
B. Henry’s Facial Challenge to the Act’s Restrictions on Disclosure of
Henry argues that language in the Act, particularly Ala. Code § 12-16-216, is
facially overbroad, relying primarily on a United States Supreme Court decision that
partially invalidated Florida’s grand jury secrecy statute on First Amendment
overbreadth grounds. (Doc. 119, pp. 4-5.) Specifically, in Butterworth v. Smith, the
Supreme Court affirmed an Eleventh Circuit decision holding that “the provisions
of [the statute] prohibiting ‘any other person’ from disclosing the nature of grand
jury testimony are unconstitutional to the extent that they apply to witnesses who
speak about their own testimony after the grand jury investigation is terminated.”
Butterworth, 494 U.S. at 628-29 (citing 866 F.2d 1318, 1319, 1321 (11th Cir. 1989)
(emphasis added)). See also Butterworth, 866 F.2d at 1319 (“Appellant argues that
[the statute] is unconstitutionally overbroad, in that it prohibits any person appearing
before the grand jury from ever disclosing matters testified to, even long after the
investigation is terminated.”) (emphasis added).
1. The Butterworth Decision
In Butterworth, the Supreme Court balanced a Florida grand jury witness’s
asserted First Amendment rights against Florida’s interests in preserving the
confidential nature of its grand jury proceedings. 494 U.S. at 630–31. There, a
reporter wanted to publish a story detailing information he had learned about a public
corruption matter, but was prohibited from doing so because he had testified about
the same corruption matter before a state grand jury. The Supreme Court held that
Florida’s interest in continued secrecy under the statute in question, which provided
that no one could “publish, broadcast, disclose, divulge, or communicate to any other
person, or knowingly to cause or permit to be published, broadcast, disclosed,
divulged, or communicated to any other person, in any manner whatsoever, any
testimony of a witness examined before the grand jury, or the content, gist, or import
thereof,” had to be weighed against the reporter’s First Amendment rights to make
a truthful public statement about the investigation. Butterworth, 494 U.S. at 635–36
(discussing Fla. Stat. § 905.27 (1989)). The Court found that the restrictive effect of
the Florida statute was “dramatic,” stating:
Before he is called to testify in front of the grand jury, [the reporter] is
possessed of information on matters of admitted public concern about
which he was free to speak at will. After giving his testimony,
respondent believes he is no longer free to communicate this
information since it relates to the ‘content, gist, or import’ of his
testimony. The ban extends not merely to the life of the grand jury but
into the indefinite future. The potential for abuse of the Florida
prohibition, through its employment as a device to silence those who
know of unlawful conduct or irregularities on the part of public
officials, is apparent.
494 U.S. at 635–36.
In effect, the Supreme Court concluded that the language of the Florida statute
captured the knowledge and information held by the witness before he entered into
and testified during the grand jury proceeding because it fell within the language
prohibiting a witness from “disclos[ing], divulg[ing], or communicat[ing] . . . in any
manner whatsoever” “the content, gist, or import thereof” of “any testimony of a
witness examined before the grand jury.” Thus, for example, if a witness testified
before the grand jury about a particular matter of which he had lawful knowledge
before giving his testimony, the statute, by its language, prohibited the witness from
later discussing that same matter because it was the subject of his testimony.
According to Henry, Ala. Code §§ 12-16-215 and 12-16-216, like the Florida
grand jury secrecy statute that was partially invalidated in Butterworth, have a
similarly “dramatic” impact on an individual’s ability to speak on matters of public
concern about which the witness knew prior to testifying before a grand jury. While
the sections differ somewhat from the Florida statute that was analyzed in
Butterworth, Henry argues that the Alabama provisions also contain broad language,
which clearly impacts the free speech rights of witnesses in Alabama grand jury
The Alabama Attorney General, on the other hand, argues that the Act’s
language, unlike Florida’s language, does not pose any unconstitutional
infringement on a grand jury witness’s right to speak publicly about matters that the
grand jury witness knew before setting foot inside the grand jury room because these
two statutes, by their language, do not capture prior knowledge. (Doc. 108, pp. 2022.) Therefore, argues the Attorney General, the Act survives First Amendment
scrutiny under Butterworth.
2. Ala. Code § 12-16-215
The court begins with the text of Ala. Code § 12-16-215. There, a grand jury
witness, such as Henry, is precluded from “reveal[ing], disclos[ing] or divulg[ing]”
“at any time” “directly or indirectly” “by any means whatsoever” “any knowledge
or information pertaining to any grand juror’s . . . considerations, . . . evidence, or
any other matter taken within or occurring before any grand jury of this state.”
Henry argues that this language captures and therefore includes prior knowledge.
The Attorney General says it does not. But what the parties do seem to agree upon,
is that if the language does include prior knowledge, then the Eleventh Circuit’s and
Supreme Court’s decisions in Butterworth hold that the language unconstitutionally
infringes upon Henry’s First Amendment rights.
Here, reviewing the language of Ala. Code § 12-16-215 even in the broadest
sense, the court strains to find any construction that would capture a witness’s prior
knowledge. Perhaps such would be captured under the language prohibiting a
witness from disclosing the evidence presented to a grand juror for consideration,
which in Henry’s case, would be the facts and information that Henry testified to
before the grand jury. But it appears that, at its core, § 12-16-215 is directed toward
the disclosure of the grand jury’s actions, such as its votes, deliberations, debates
and discussions, issues that Henry does not seek permission to openly discuss.
Because only through an extremely strained and unorthodox reading of § 1216-215 can it arguably be interpreted as capturing a witness’s prior knowledge, the
court concludes that § 12-16-215 does not run afoul of Butterworth. The fact that
Henry gives little mention to it in his summary judgment brief suggests that Henry
does not challenge this interpretation either.
3. Ala. Code § 12-16-216
But aside from § 12-16-215, Henry also raises a challenge to § 12-16-216.
That section precludes a grand jury witness, such as Henry, from “reveal[ing],
disclos[ing] or divulg[ing]” “at any time” “directly or indirectly” “by any means
whatsoever” “any knowledge of the form of, nature or content of any physical
evidence presented” or “any question propounded” or “any comment made by any
person in response thereto or any other evidence, testimony or conversation
occurring or taken therein.” The Act does not provide definitions for the terms
contained in § 12-16-216. Instead, the public is left to use its best guess as to the
speech that is captured by § 12-16-216’s language.
On its face, this section appears broader in application than § 12-16-215 and
appears to capture prior knowledge because such would constitute knowledge of the
“nature or content” of physical evidence presented, questions propounded and
responses thereto, and other testimony taken during the grand jury proceeding. In
that context, the language at issue is not too different from the language of Florida
Statute § 905.27 (1989) at issue in Butterworth, which provided it was “unlawful for
any person knowingly to publish, broadcast, disclose, divulge, or communicate to
any other person . . . any testimony of a witness examined before the grand jury, or
the content, gist, or import thereof.” Fla. Stat. § 905.27 (1989) (emphasis added).
The Supreme Court explained the issue thusly:
(B)efore he is called to testify in front of the grand jury, respondent is
possessed of information on matters of admitted public concern about
which he was free to speak at will. After giving his testimony,
respondent believes he is no longer free to communicate this
information since it relates to the “content, gist, or import” of his
testimony. The ban extends . . . into the indefinite future. The potential
for abuse of the Florida prohibition . . . as a device to silence those who
know of unlawful conduct or irregularities on the part of public
officials, is apparent. We agree with the Court of Appeals that the
interests advanced by the portion of the Florida statute struck down are
not sufficient to overcome respondent’s First Amendment right to make
a truthful statement of information he acquired on his own.
494 U.S. at 635–36 (emphasis added).
Here, though the Lee County grand jury has long since terminated its
proceedings against Speaker Mike Hubbard, and though Henry wishes to discuss his
own conversations that occurred before Henry set foot in the grand jury room, § 1216-216’s text, plainly read, arguably would sanction a prosecution of Henry for
doing so. Like the Florida statute at issue in Butterworth, the Act’s language can be
read to prohibit a witness’s ability to communicate about “information on matters of
admitted public concern about which he was free to speak at will” prior to the witness
testifying about that information in the grand jury room because those matters relate
to the “nature or content” of responses to questions propounded and the “nature or
content” of other evidence, testimony, and conversations occurring within the grand
jury proceeding. Butterworth, 494 U.S. at 635. As a result of this overly broad
language, the Act captures a witness’s prior knowledge and thus impermissibly
restricts that witness’s First Amendment rights pursuant to Butterworth. Id.
The Attorney General maintains both directly and through its expert witness
that no grand jury witness has ever been prosecuted for divulging this “prior
knowledge,” and so there is simply no First Amendment infringement here. (E.g.,
Doc. 108, p. 7.)7 This does not, however, mean a prosecutor will not do so in the
Equally unpersuasive is the Attorney General’s contention that because prosecutors have
interpreted the Act in a way that has not precluded grand jury witnesses from speaking about their
prior knowledge, the Act is “readily” subject to competing interpretations, thus necessitating the
application of the doctrine of constitutional avoidance. (Doc. 108, p. 22.) While the practice in the
Eleventh Circuit is to “uphold a state statute against a facial challenge if the statute is readily
susceptible to a narrowing construction that avoids constitutional infirmities,” the Circuit also
future.8 The willingness of the executive branch to follow the law in a manner that
is constitutional does not affect whether a statute is facially invalid; if the text is
repugnant to the Constitution, that is the end of the matter. See, e.g., Clean Up ‘84
v. Heinrich, 759 F.2d 1511, 1514 (11th Cir. 1985) (“The danger in an overbroad
statute is not that actual enforcement will occur or is likely to occur, but that third
parties . . . may feel inhibited in utilizing their protected first amendment
communications because of the existence of the overly broad statute.”) (citing
Taxpayers for Vincent, 466 U.S. at 801). “It is no answer, therefore, to this facial
challenge that the statute has not been enforced” against third parties who could
conceivably be affected by the statute’s overbreadth. E.g., Clean Up ‘84, 759 F.2d
at 1514. A government’s past practice of non-enforcement does not negate a
statute’s First Amendment chilling effect. See Parker v. Judicial Inquiry Comm’n of
cautions against “rewrit[ing] the clear terms of a statute in order to reject a facial challenge,”
particularly when a federal court is reviewing a state statute. Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1256, n.6 (11th Cir. 2005) (citing Fla. Right to Life, Inc. v. Lamar, 273
F.3d 1318, 1326 (11th Cir. 2001) (citing in turn Dimmitt v. City of Clearwater, 985 F.2d 1565,
1572 (11th Cir. 1993) (internal marks omitted)). Importantly, there is no Alabama Supreme Court
decision that limits the Act, and a narrowed reading would require this court to rewrite the basic
terms of the statute by inserting limiting language. The court is reluctant to do so. Instead, the
task of drafting a constitutionally permissible grand jury secrecy statute should be left to the state
legislature. See Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993). In any event, even
if the Act could be construed in a constitutional manner, overbreadth is an exception to the rule
that a plaintiff mounting a facial attack must prove that no set of circumstances exists under which
the challenged statute would be valid. Valencia Coll., 903 F.3d at 1232.
In having found that § 12-16-216 is, in part, facially unconstitutional, and in light of the Attorney
General’s insistence that he has not and will not prosecute a grand jury witness for disclosing prior
knowledge, the court pretermits discussion under an as-applied theory.
Alabama, Case No. 2:16-CV-442-WKW, 2017 WL 3820958, at *5 (M.D. Ala. Aug.
31, 2017) (Watkins, J.) (“What matters is whether the Attorney General ‘has the
power’ to enforce the challenged provision against the plaintiff.”) (citing Socialist
Workers Party v. Leahy, 145 F.3d 1240, 1246 (11th Cir. 1998)).
Here, we have a clear example of such a chilling effect. Counsel for the
Attorney General admitted at oral argument that a witness who has appeared before
a grand jury would have no way of guaranteeing his freedom from prosecution if he
wanted to talk about his own testimony, short of consulting with an attorney about
what is precisely permissible to discuss and what is not. That admission itself
demonstrates the law’s overbreadth under the First Amendment: “[m]any persons,
rather than undertake the considerable burden (and sometimes risk) of vindicating
their rights through case-by-case litigation, will choose simply to abstain from
protected speech . . . harming not only themselves but society as a whole, which is
deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by
suspending all enforcement of an overinclusive law, reduces these social costs
caused by the withholding of protected speech.” Virginia v. Hicks, 539 U.S. 113,
The court is mindful, especially given our country’s current national environment, of the general
necessity for grand jury proceedings to be kept out of the public view. See Anonymous Grand
Juror #1 v. Commonwealth of Kentucky, Case No. 20-CI-5721 (KY. Circ. Ct. 2020); see also Doe
v. Bell, 969 F.3d 883 (8th Cir. 2020); Doe v. McCulloch, 542 S.W.3d 354 (Mo. Ct. App. 2017).
Again, the court only finds § 12-16-216 invalid insofar as that provision can be read to prohibit
disclosure of a witness’s prior knowledge after the grand jury has completely finished its work,
What the court can practically do to remedy the problematic language in Ala.
Code § 12-16-216 is a tricky question. See, e.g., Fallon, 113 Harv. L. Rev. 1321,
1339 (2000) (“A court has no power to remove a law from the statute books. When
a court rules that a statute is invalid--whether as applied, in part, or on its face--the
legal force of its decision resides in doctrines of claim and issue preclusion and of
precedent.”). The court notes that although it is upholding a facial challenge against
one section in the Act, the entire Act is not rendered invalid thereby under the
venerable rule that statutes are to be rendered invalid partially, leaving in place the
rest of the law. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)
(“the normal rule that partial, rather than facial, invalidation is the required course.”).
There is no severability provision specifically contained within the Act. “In
determining whether to sever a constitutionally flawed provision, courts should
consider whether the balance of the legislation is incapable of functioning
independently,” United States v. Romero–Fernandez, 983 F.2d 195, 196 (11th Cir.
1993), and whether partial invalidation of the statute “would be contrary to
legislative intent in the sense that the legislature would not have passed the statute
nothing more. See generally Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979)
(“We consistently have recognized that the proper functioning of our grand jury system depends
upon the secrecy of grand jury proceedings.”).
without the invalid portion,” Smith v. Butterworth, 866 F.2d at 1321. The court’s
inquiry “does not, however, begin and end there. That is so, because courts will strive
to uphold acts of the legislature.” State ex rel. Pryor ex rel. Jeffers v. Martin, 735
So. 2d 1156, 1158 (Ala. 1999) (citing City of Birmingham v. Smith, 507 So. 2d 1312,
1315 (Ala. 1987) (quotations omitted)).
Under applicable Alabama law, “if a portion of a legislative enactment is
determined to be unconstitutional but the remainder is found to be enforceable
without it, a court may strike the offending portion and leave the remainder intact
and in force.” Martin, 735 So. 2d at 1158. “Nevertheless, the authority of a court to
eliminate invalid elements of an act and yet sustain the valid elements is not derived
from the legislature, but rather flows from powers inherent in the judiciary.” Id.
(citing 2 Norman J. Singer, Sutherland Statutory Construction, § 44.08 (5th ed.
1992) (quotations omitted)).
Alabama Code § 12-16-216 is severable from the rest of Act, as shown by the
similar severability analysis undertaken by the Eleventh Circuit in Butterworth.
There, as here, “(t)he remainder of the statute accomplishes the legislature's general
intent of enhancing the integrity of the grand jury system by providing for the
confidentiality of the proceedings.” 866 F.2d at 1321.
To be clear, the court is not striking Ala. Code § 12-16-216 in its entirety, nor
is it striking any of the specific language contained therein. Rather, this court’s
finding is that, pursuant to Butterworth and the governing First Amendment
overbreadth doctrine, Ala. Code § 12-16-216 is unconstitutional only in its
application to Henry’s disclosure of information he possessed prior to his testimony
before the grand jury. Accordingly, summary judgment as to Henry’s facial
challenge to the Act is due to be GRANTED, in part, as to Henry, and DENIED, in
part, as to the Attorney General.
In his Complaint, Henry also asks this court to issue a permanent injunction
to prevent the Attorney General from enforcing the Act against him. Under
traditional equitable principles, a plaintiff seeking a permanent injunction must
satisfy a four-factor test before a court may grant such relief. See Angel Flight of
Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008). Neither
Henry nor the Attorney General, however, address these factors or the request for an
injunction in their respective summary judgment motions. Having declared the Act
unconstitutional as it applies to Henry’s prior knowledge, and given the parties’ lack
of briefing on the issue, the court declines to issue an injunction here. Instead, the
court expects that the parties will act in accordance with the court’s order.
C. Henry’s Ability to Speak About the Grand Jury Proceeding
While Butterworth leads the way as it concerns any restriction by the State of
Alabama on a grand jury witness’s efforts to discuss and divulge prior knowledge,
Butterworth does not definitively answer the question as it concerns Henry’s desire
to discuss what happened in the grand jury room, whether that be which questions
he was asked, which questions he was not asked, Hart’s demeanor and actions, and
any belief by Henry of prosecutorial misconduct occurring inside the grand jury
room. Indeed, in Butterworth, the Supreme Court purposely did not address the right
of a witness to discuss his “experience” before the grand jury. 494 U.S. at 629 n.2.
The Supreme Court instead limited its holding to allow the witness to “divulge
information of which he was in possession before he testified before the grand jury,
and not information which he may have obtained as a result of his participation in
the proceedings of the grand jury.” Id. at 631-32.
The Butterworth Court stated that its holding was limited to a grand jury
witness’s testimony, as that was how the question was limited by the Eleventh
Circuit, to which the plaintiff did not object. 494 U.S. at 629, n.2 (“In his complaint,
respondent also sought a declaration that he was entitled to divulge his ‘experience’
before the grand jury. Whatever this term might encompass, it is clear that the Court
of Appeals limited its holding to a witness’ ‘testimony’ before the grand jury. Since
respondent has not sought review of any portion of this ruling, we similarly limit our
holding to the issue of a witness’ grand jury testimony.”); see 866 F.2d at 1320–21
(“We thus conclude that [the statute] is unconstitutional insofar as it applies to
witnesses who speak about the nature of their own grand jury testimony after the
investigation has been completed.”).
As Justice Scalia noted in his Butterworth concurrence, it was “[q]uite a
different question presented, however, by a witness’ disclosure of the grand jury
proceedings, which is knowledge he acquires ‘not on his own’ but only by virtue of
being made a witness.” 494 U.S. at 637.
Thus, Henry’s case varies from Butterworth in a critical way. He not only
wants to divulge information that he possessed prior to his grand jury testimony, but
he also wants to publicly disclose information he learned as a direct result of his
participation in the Lee County grand jury proceeding. The question then is whether
the First Amendment requires the State of Alabama to allow Henry to disclose both
the former and the latter.
To this point, the court has only dealt with Henry’s right to disclose
information that he knew prior to entering the grand jury room. The next question
this court must answer is whether Henry may speak to the things he heard, saw, and
experienced within that deliberative chamber. This issue implicates the full range
of justifications for the secrecy of grand jury deliberations. See Douglas Oil, 441
U.S. at 218; Butterworth, 494 U.S. at 629. The question is complicated by the fact
that the grand jury investigation at issue is in the distant past, and the criminal
proceeding against Hubbard only recently concluded. As the matters Henry wishes
to discuss comprise speech that attempts to hold a public official to account, this
speech lies at the very core of First Amendment protection. See Butterworth, 494
U.S. at 632.
Instructive here is another recent high-profile case, Doe v. Bell. There, the
Eighth Circuit upheld the State of Missouri’s grand jury secrecy law as to a grand
juror who sought to talk about matters of public interest that she witnessed during
the grand jury proceeding that investigated the police shooting of Michael Brown in
Ferguson, Missouri. See Doe v. Bell, 969 F.3d 883, 894 (8th Cir. 2020) (upholding
Mo. Ann. Stat. § 540.320).10 This grand juror argued that she should have been able
to discuss in public what transpired during the grand jury proceeding in the interests
of justice and transparency. The juror believed the prosecutor released misleading
information to the public following the conclusion of the grand jury’s work in that
case, where ultimately, the officer who shot Michael Brown was not indicted. See
969 F.3d at 886.
The Bell court analyzed First Amendment concerns in determining whether
the Missouri statute was narrowly tailored to achieve a compelling governmental
interest as applied to the speech in which the plaintiff averred she wanted to engage,
and found that the statute was narrowly tailored. Id. at 889. The court held that,
The statute at issue in Bell reads in full: “No grand juror shall disclose any evidence given before
the grand jury, nor the name of any witness who appeared before them, except when lawfully
required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment
having been found against any person for a felony, not in actual confinement, until the defendant
shall have been arrested thereon. Any juror violating the provisions of this section shall be deemed
guilty of a class A misdemeanor.” Mo. Ann. Stat. § 540.320.
among other things, the Missouri statute protected the identity of witnesses and the
information they presented to the grand jury, protected the secrecy of the grand
jury’s deliberative process, and protected the unindicted accused from public
ridicule or opprobrium. The court also held that the statute did not sweep too broadly,
did not permit vast swaths of speech that would undermine the state’s otherwise
compelling interest such that the statute cannot be accurately said to advance its
stated purposes, and that there was no more limited means by which the state could
advance its interest in preserving its functioning grand jury system. Id. at 892-894.
Here, unlike in Bell, this court is faced with a state grand jury witness, not a
grand juror, who wishes to recount his own personal experience within the grand
jury proceedings. The court notes that the basic presumption in federal criminal
cases is that grand jury witnesses are not bound by secrecy with respect to the content
of their testimony. See, e.g., In re Grand Jury, 490 F.3d 978, 985 (D.C. Cir. 2007)
(“The witnesses themselves are not under an obligation of secrecy.”); see also id. at
989 (“A grand jury witness is legally free to tell, for example, his or her attorney,
family, friends, associates, reporters, or bloggers what happened in the grand jury.
For that matter, the witness can stand on the courthouse steps and tell the public
everything the witness was asked and answered.”) (citing Fed. R. Crim. P.
6(e)(2)(A)-(B); Fed. R. Crim. P. 6, Advisory Committee Notes, 1944 Adoption, Note
to Subdivision (e)). But that exception in the federal context does not render the
state’s interest in its own grand jury proceedings any less compelling, as courts have
upheld state law restrictions on grand jury witnesses’ disclosure of information
learned only by participating in grand jury proceedings where the restrictions were
limited in duration, see Butterworth, 494 U.S. at 632, or allowed for broad judicial
review, see Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003)
(agreeing state court grand jury witness could be precluded from disclosing
information learned through giving testimony, but noting state law provided a
mechanism for judicial determination of whether secrecy was still required).
As in Bell, the Alabama statute is a content-based restriction of speech, and
so the court must evaluate whether the Alabama statute is narrowly tailored to the
state’s compelling interest in maintaining grand jury secrecy against Henry’s desire
to publicly recount his experience before the Lee County grand jury. See, e.g., Otto
v. City of Boca Raton, Fla., 981 F.3d 854, 861 (11th Cir. 2020) (“because the
ordinances depend on what is said, they are content-based restrictions that must
receive strict scrutiny.”).
1. Compelling Interest
That Alabama’s interest in grand jury secrecy is compelling needs little
repetition, for as the Supreme Court has recounted, that interest is a venerable part
of our common law heritage from England. Douglas Oil, 441 U.S. at 219 n.9 (“Since
the 17th century, grand jury proceedings have been closed to the public, and records
of such proceedings have been kept from the public eye. The rule of grand jury
secrecy was imported into our federal common law and is an integral part of our
criminal justice system.”) (citation omitted). Grand jury secrecy “serves several
interests common to most such proceedings, including enhancing the willingness of
witnesses to come forward, promoting truthful testimony, lessening the risk of flight
or attempts to influence grand jurors by those about to be indicted, and avoiding
public ridicule of those whom the grand jury declines to indict.” John Doe, Inc. v.
Mukasey, 549 F.3d 861, 876 (2d Cir. 2008), as modified (Mar. 26, 2009) (citing
Douglas Oil, 441 U.S. at 218–19).
However, “the invocation of grand jury interests is not some talisman that
dissolves all constitutional protections;” instead, “grand juries are expected to
“operate within the limits of the First Amendment, as well as the other provisions of
the Constitution.” Butterworth, 494 U.S. at 630 (citations and quotations omitted).
The court therefore turns next to the justifications proffered by the State of Alabama.
Id. (“We must thus balance respondent's asserted First Amendment rights against
Florida's interests in preserving the confidentiality of its grand jury proceedings.”).
Alabama Code § 12-16-214 lists four interests protected by the state’s grand
jury secrecy statutes, including that grand jurors have the utmost freedom in their
deliberations without fear of outside influence, that witnesses may testify freely
without fear of retaliation, preventing the accused from fleeing prosecution, and
protecting the reputations of those falsely accused. See Ala. Code § 12-16-214. The
Attorney General also offers the testimony of Ellen Brooks, an expert with more
than forty years of experience as a prosecutor for the State of Alabama. (See Doc.
109-2.) Brooks articulates five primary reasons for the continued maintenance of
the veil of secrecy over all that happens in the grand jury room. First, Brooks
believes that criminal suspects and the media will put pressure on grand jurors.
Second, witnesses might face external pressure and be told not to answer questions.
Third, when a suspect learns of a grand jury investigation, documents or other
evidence may “disappear.” Fourth, continued secrecy, even after the conclusion of
the grand jury term, protects the accused because prosecutors can conduct
investigations while ensuring that the reputation of the accused remains intact. Fifth,
new grand jury proceedings against a suspect can be instigated years later based on
new evidence. These final two examples, Brooks claims, show the importance of
secrecy long after the investigation is completed.
Because the grand jury proceeding against Mike Hubbard has concluded and
because Hubbard’s criminal matter has recently come to an end, only two of the
justifications listed within the statute and offered by Brooks directly bear on the case
at bar: protecting the reputation of those persons falsely accused of criminal acts and
safeguarding the ability of prosecutors to later bring new charges against a suspect.
First, as to protecting the reputation of the accused, although Hubbard was
indicted and convicted on multiple counts, the public does not know whether or not
the grand jury considered evidence of other alleged crimes for which an indictment
did not issue. Should Henry be permitted to discuss what transpired within the grand
jury proceeding, he could potentially disclose evidence or accusations which are not
now publicly known, further jeopardizing Hubbard’s reputation as well as the
reputations of others who were discussed during Henry’s testimony. With regard to
this specific interest, there is no indication that Mike Hubbard wants or has asked
Henry to publicly speak about what transpired within the grand jury proceeding.
Alabama’s interest in protecting the reputation of those accused of criminal acts thus
remains sufficiently compelling to protect the secrecy of the proceedings at issue in
Second, should Henry reveal evidence of other alleged crimes or even
generally discuss what transpired within the grand jury room, his disclosures could
impede the prosecutor’s ability to instigate new proceedings against an accused. This
interest is equally compelling, given that the proper functioning of the grand jury
system depends on the secrecy of those proceedings. See Bell, 969 F. 3d at 892.
While the public interests that the Attorney General claims are served by the
Act may be limited under the particular facts in the instant case, the secrecy interests
behind the Act nevertheless do exist and are real, especially when viewed through
the broader lens of the very high profile prosecution of Mike Hubbard.11
2. Henry’s First Amendment Assertions
Furthermore, and dispositive here, unlike most other First Amendment cases
where content-based regulations are challenged, the Supreme Court has held that
piercing grand jury secrecy requires the proposed speaker’s justifications to also be
weighty; that is, the burden is not solely on the state to show a “compelling” interest.
See Douglas Oil, 441 U.S. at 222-223. The grand jury’s “indispensable secrecy . . .
must not be broken except where there is a compelling necessity. There are instances
when that need will outweigh the countervailing policy. But they must be shown
with particularity.” United States v. Procter & Gamble Co., 356 U.S. 677, 682
(1958) (citation and quotations omitted). This court “must thus balance respondent’s
asserted First Amendment rights against [the state’s] interests in preserving the
confidentiality of its grand jury proceedings.” Butterworth, 494 U.S. at 630–31
(citing Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 838 (1978) (balancing
the state’s interest in preserving confidentiality of judicial review proceedings
Indeed, when grand jury proceedings are challenged in a public forum, delicate matters can
become complicated and distorted. For example, the release of materials from the grand jury
inquiries into the police shootings of Michael Brown and Breonna Taylor sparked a rancorous
public debate regarding what should or should not have resulted from those proceedings. Without
commenting on what transpired in those particular cases, the court is cognizant that sensitive
matters of public import require sober and deliberate resolution in the judiciary rather than in the
court of public opinion.
against the rights of newspaper reporting on such proceedings); Branzburg v. Hayes,
408 U.S. 665, 690–91 (1972) (balancing state interest in effective grand jury
proceedings against burden on reporters’ news gathering from requiring disclosure
Here, Henry’s offered interest—ostensibly, telling the public about
prosecutorial misconduct he witnessed in the grand jury room—especially as it
relates to matters that he only learned by virtue of being present in the room and
having participated in the proceeding, would eliminate the secrecy of the Lee County
grand jury’s proceedings for the rather weak purpose of essentially politicizing the
grand jury process that indicted Mike Hubbard. After all, Henry filed this lawsuit
while the Hubbard case was ongoing, perhaps in a roundabout attempt to publicly
challenge the accusations of wrongdoing against Hubbard which ultimately resulted
in Hubbard’s criminal conviction.
Harkening back to the “public pressure” cases of the recent past, the court
considers what would happen if a grand jury witness were to speak about a grand
jury investigation of an innocent man who is not yet indicted. Outside pressure might
warp the very purpose of the grand jury: to stand as a barrier on behalf of every
citizen between the state’s prosecution and the not-yet indicted citizen. “To be sure,
in a case where the name of the accused and the facts are widely known, this concern
is of less importance, (b)ut the fact that much of the evidence is public does not
lessen [the state’s] compelling interest in ensuring [grand jury participants] do not
use the information they gathered as part of the grand jury process to impugn the
innocence of the accused with charges they could not agree to collectively.” Bell,
969 F.3d at 893 (citing Douglas Oil, 441 U.S. at 218 n.8 (noting that petitioners were
entitled to the “protection” of grand jury secrecy even though they had already been
indicted and had pleaded nolo contendere)). “Only the grand jury as a whole is in a
position to have competently considered . . . the relevant evidence.” Bell, 969 F.3d
at 893. “The interests in grand jury secrecy, although reduced, are not eliminated
merely because the grand jury has ended its activities.” Douglas Oil, 441 U.S. at 222.
3. Least Restrictive Means
Simply put, there is no more limited means by which Alabama can advance
its interest in preserving the functioning of the grand jury system other than
mandating that its proceedings remain secret, for if a grand jury witness is to be
allowed to speak about his “experiences,” or the quality of the evidence discussed,
or the name of the accused, then not only will jurors “hesitate to discuss matters
candidly or to vote their conscience out of fear of future publicity,” but the ability of
the state to prosecute alleged criminals would be severely harmed as well. See Bell,
969 F.3d at 894 (citing Butterworth, 494 U.S. at 636-37 (Scalia, J., concurring)); see
also Douglas Oil Co., 441 U.S. at 218-19 (“There also would be the risk that those
about to be indicted would flee, or would try to influence individual grand jurors to
vote against indictment.”). The court “must consider not only the immediate effects
upon a particular grand jury, but also the possible effect upon the functioning of
future grand juries.” Douglas Oil, 441 U.S. at 222.
The court is mindful that there is a bona fide interest in ferreting out
prosecutorial misconduct, including misconduct which takes place within a grand
jury proceeding. But there is already an outlet for addressing that interest: voicing
concerns to the court overseeing the grand jury itself. And if a criminal indictment
results from the grand jury’s proceedings, concerns about a rogue prosecutor could
then be directed to the judge overseeing the criminal trial of the accused. Indeed,
that is precisely what occurred in Mike Hubbard’s criminal proceeding. (See Doc.
In sum, drawing the line at what Henry knew prior to setting foot in the grand
jury room, the First Amendment protects Henry’s right to publicly speak about his
own prior knowledge, but it does not protect his desire to speak about what he
learned only as a result of his participation in the grand jury proceeding. There is no
more limited means by which Alabama can advance its compelling state interest in
preserving the functioning of the grand jury system. If Henry were to speak on the
quality of the evidence or the prosecutor, or what transpired inside the proceeding,
he would necessarily undermine the functioning of the grand jury and, as reflected
in this case, politicize those proceedings. As the Bell court noted, “[w]itnesses in
future cases may be less candid. The unindicted may face unending questions about
culpability as juror after juror comes forward with their own view of the evidence,
feeling pressured to respond either to challenge or defend Doe’s views, lest their
collective decision be mischaracterized. And in future cases, jurors might hesitate to
discuss matters candidly or to vote their conscience out of fear of future publicity.”
Bell, 969 F.3d at 894. The imposition of secrecy is narrowly tailored to serve
Alabama's compelling interest in the confidentiality of its grand jury proceedings.
For the foregoing reasons, the court finds that provisions of the Alabama
Grand Jury Secrecy Act, specifically Ala. Code § 12-16-216, are unconstitutionally
overbroad to the extent these provisions preclude a grand jury witness from
disclosing his prior knowledge in a public forum. The Act otherwise meets
constitutional muster. Accordingly, it is ORDERED as follows:
1. The Plaintiff’s Motion for Summary Judgment (Doc. 111) is GRANTED
in part as to the Plaintiff’s overbreadth claim. The motion is DENIED as
to all other claims.
2. The Defendant’s Motion for Summary Judgment (Doc. 103) is DENIED
as to the Plaintiff’s overbreadth claim. The motion is GRANTED as to all
other claims in the Complaint.
3. The Plaintiff’s request for a permanent injunction as to the enforcement of
the Act against Henry is DENIED.
4. The Plaintiff’s request for an order releasing the transcripts and audio
recordings of Henry’s 2014 testimony before a Lee County grand jury is
5. The Plaintiff’s request for a permanent injunction as to the warnings given
to grand jury witnesses is DENIED.
DONE and ORDERED this 31st day of March, 2021.
/s/ R. Austin Huffaker Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE
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