William E. Henry v. Attorney General, State of Alabama ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11483
____________________
WILLIAM E. HENRY,
Plaintiff-Appellant
-Cross Appellee,
versus
ATTORNEY GENERAL, STATE OF ALABAMA,
Defendant-Appellee
-Cross Appellant,
MILES M. HART,
in his official capacity as Deputy Attorney General for the
State of Alabama and Chief of the Special Prosecutions Divisions,
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2 Opinion of the Court 21-11483
Defendant.
____________________
Appeals from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:17-cv-00638-RAH-JTA
____________________
Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit
Judges.
LUCK, Circuit Judge:
In Butterworth v. Smith, 494 U.S. 624 (1990), the Supreme
Court held that, to the extent Florida’s grand jury secrecy law pro-
hibited a grand jury witness from divulging information he learned
before he testified to the grand jury, it violated the First Amend-
ment’s Free Speech Clause. Id. at 635–36. But Butterworth left
open the question of whether, to the extent Florida’s grand jury
secrecy law prohibited a witness from disclosing grand jury infor-
mation he learned “only by virtue of being made a witness,” the
secrecy law also violated the First Amendment. Id. at 636 (Scalia,
J., concurring).
This case raises both issues—the one Butterworth decided
and the one it didn’t. Does Alabama’s grand jury secrecy law pro-
hibit a grand jury witness from divulging information he learned
before he testified to the grand jury, and if so, does the secrecy law
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21-11483 Opinion of the Court 3
violate the First Amendment? And does the Alabama grand jury
secrecy law’s prohibition on a witness disclosing grand jury infor-
mation he learned “only by virtue of being made a witness” violate
his First Amendment free speech rights? See id.We conclude that Alabama’s grand jury secrecy law, unlike
the Florida law in Butterworth, cannot reasonably be read to pro-
hibit a grand jury witness from divulging information he learned
before he testified to the grand jury. We also conclude that the
grand jury secrecy law’s prohibition on a witness’s disclosure of
grand jury information that he learned only by virtue of being
made a witness does not violate the Free Speech Clause.
FACTUAL BACKGROUND
Alabama’s Grand Jury Secrecy Law
For almost half a century, Alabama has protected the secrecy
of its grand jury proceedings. In enacting the grand jury secrecy
law in 1975, the Alabama Legislature determined that “it is essen-
tial to the fair and impartial administration of justice that all grand
jury proceedings be secret and that the secrecy of such proceedings
remain inviolate.” Ala. Code § 12-16-214. The grand jury secrecy
law is “to be construed” to accomplish four purposes:
(1) That grand juries have the utmost freedom in their
discussions, deliberations, considerations, debates,
opinions and votes without fear or apprehension that
the same may be subsequently disclosed, or that they
may be subject to outside pressure or influence or in-
jury in their person or property as a result thereof.
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(2) That those persons who have information or
knowledge with respect to the commission of crimes
or criminal acts be encouraged to testify freely and
truthfully before an appropriate grand jury without
fear or apprehension that their testimony may be sub-
sequently disclosed, or that they may be subject to in-
jury in their person or property as a result thereof.
(3) That those persons who have committed criminal
acts or whose indictment may be contemplated not
escape or flee from the due administration of justice.
(4) That those persons falsely accused of criminal acts
are not subject to public scrutiny or display and their
otherwise good names and reputations are left intact.
Id. § 12-16-214(1)–(4).
There are two key sections to the Alabama grand jury se-
crecy law. First, it prohibits the disclosure of the internal delibera-
tions and opinions of the grand jurors:
No past or present grand juror, past or present grand
jury witness or grand jury reporter or stenographer
shall willfully at any time directly or indirectly, condi-
tionally or unconditionally, by any means whatever,
reveal, disclose or divulge or attempt or endeavor to
reveal, disclose or divulge or cause to be revealed, dis-
closed or divulged, any knowledge or information
pertaining to any grand juror’s questions, considera-
tions, debates, deliberations, opinions or votes on any
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case, evidence, or other matter taken within or occur-
ring before any grand jury of this state.
Id. § 12-16-215.
And second, the law prohibits the disclosure of the evidence,
questions, answers to questions, testimony, and conversations pre-
sented to the grand jury:
No past or present grand juror, past or present grand
jury witness or grand jury reporter or stenographer
shall willfully at any time, directly or indirectly, con-
ditionally or unconditionally, by any means what-
ever, 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 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 com-
ment made by any person in response thereto or any
other evidence, testimony or conversation occurring
or taken therein.
Id. § 12-16-216.
The Alabama grand jury secrecy law allows any prosecutor,
grand jury foreman, or circuit court to require witnesses “to submit
to an oath or affirmation of secrecy.” Id. § 12-16-219. It also pro-
vides that “[t]he failure of any witness to be so sworn shall not re-
lieve such witness of any criminal liability imposed” by Alabama’s
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grand jury secrecy law. Id. Any person who violates the grand jury
secrecy law commits a felony punishable by one to three years’ im-
prisonment. Id. § 12-16-225.
Henry’s Testimony Before the Grand Jury
Starting in 2013, Mike Hubbard, the former Speaker of the
House of the Alabama Legislature, was the target of a grand jury
investigation in Lee County, Alabama. He was accused of misus-
ing his office for personal gain, including by funneling money into
his printing business. Speaker Hubbard was indicted in state court
in October 2014 on twenty-three counts. He was convicted of
twelve counts following a trial. The Alabama Court of Criminal
Appeals vacated one of the convictions because of insufficient evi-
dence of guilt and affirmed the other eleven. Hubbard v. State, 321
So. 3d 8 (Ala. Crim. App. 2018). The Alabama Supreme Court re-
versed five of the remaining convictions on insufficient-evidence
grounds and affirmed the other six. Ex Parte Hubbard, 321 So. 3d
70 (Ala. 2020). So, the Court of Criminal Appeals reversed one
count of conviction on insufficiency-of-evidence grounds, the Ala-
bama Supreme Court reversed five more counts on those grounds,
and when the appellate dust cleared there were convictions on six
counts still standing.
William Henry was a state representative at the time of the
investigation into Speaker Hubbard. Henry believed that he had
evidence undermining the accusations against the speaker and con-
tacted the defense team to help them.
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Before Henry testified as a grand jury witness, he talked with
other legislators about the Speaker Hubbard investigation. These
discussions included rumored leaks coming from the grand jury.
Joe Hubbard, another state legislator, allegedly gave Henry de-
tailed confidential grand jury information about witness testimony,
subpoenas, and imminent indictments. Representative Hubbard
told Henry in September 2013 that a witness had recently testified
before the grand jury. Henry had an interaction with the witness
that seemed to confirm the rumor. The media later published in-
formation about the witness appearing in front of the grand jury,
but Henry already knew about the witness testifying before the
story came out.
Henry heard rumors that Representative Hubbard’s grand
jury source was Baron Coleman—Representative Hubbard’s for-
mer law partner and a lobbyist who had connections to the lead
prosecutor on the grand jury investigation, Deputy Attorney Gen-
eral Miles “Matt” Hart. Henry believed that Coleman was using
information leaked by Deputy Attorney General Hart to improp-
erly influence political races in Alabama.
Henry contacted Speaker Hubbard’s defense team and told
them about the grand jury leaks. Speaker Hubbard’s counsel, in
turn, reached out to a federal prosecutor. Deputy Attorney Gen-
eral Hart then called Henry to question him about his leak claims.
Henry was subpoenaed to testify before the grand jury after his call
with the Deputy Attorney General, and he testified one week later
on January 24, 2014.
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A local news organization later released a recorded conver-
sation between Deputy Attorney General Hart and Coleman. The
recording was made the day before Henry’s grand jury testimony.
In the recording, Deputy Attorney General Hart called Coleman a
confidential source and said that “the [g]rand [j]ury [s]ecrecy thing
. . . shut[s] you down because you go in there and we say ‘Don’t
you speak about this,’ it is a very broad prohibition.” He told Cole-
man that “we are on utterly solid ground shutting people up.”
Henry thought that Deputy Attorney General Hart engaged
in prosecutorial misconduct during his grand jury appearance.
Henry wished to speak about his grand jury testimony and the
prosecutorial misconduct he allegedly witnessed, but he believed
that “discussing any of the information he disclosed to the grand
jury” would violate the Alabama grand jury secrecy law.
PROCEDURAL HISTORY
In 2017, Henry sued the Attorney General of Alabama in fed-
eral court. His complaint brought First Amendment claims under
42 U.S.C. section 1983. In count one, Henry alleged that section
12-16-215, as “written and as applied to him,” violated his First
Amendment free speech rights. He alleged that he wished to reveal
his knowledge about the grand jury investigation into Speaker
Hubbard and that his speech about “his grand jury testimony” was
constitutionally protected. Section 12-16-215 unconstitutionally
abridged his speech, Henry alleged, and the statute failed strict
scrutiny and was overbroad facially and as applied. In count two,
Henry alleged that section 12-16-216, as written and as applied, also
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violated his First Amendment free speech rights by prohibiting the
disclosure of his grand jury testimony and what he learned inside
the grand jury room. He argued that this statute too failed strict
scrutiny and was overbroad. 1
Henry sought: (1) a declaratory judgment that the Alabama
grand jury secrecy law unconstitutionally prevented grand jury
witnesses from discussing their testimony; (2) an injunction pre-
venting the enforcement of the Alabama grand jury secrecy law
against Henry for revealing his testimony; (3) an order releasing the
transcript of Henry’s testimony; (4) an order enjoining the Attor-
ney General and his agents from providing inaccurate and mislead-
ing warnings to grand jury witnesses; and (5) attorney’s fees and
costs.
The parties filed cross motions for summary judgment. The
Attorney General argued that the Alabama grand jury secrecy law
didn’t apply to information a witness learned “prior to being called
to testify” and didn’t prohibit Henry from discussing what “he
learned outside the grand jury room.” As to Henry’s grand jury
testimony and matters that occurred inside the grand jury room,
the Attorney General contended that—applying the balancing test
in Butterworth—the state’s interests in continued grand jury
1
In counts three and four, Henry brought the same facial and as-applied chal-
lenges to sections 12-16-219 (the oath statute) and 12-16-225 (the statute mak-
ing a violation of the grand jury secrecy law a felony). These counts are not
at issue in this appeal.
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confidentiality outweighed Henry’s First Amendment free speech
rights.
Henry, naturally, saw things differently. He argued that the
Alabama grand jury secrecy law was overbroad because, in pre-
venting witnesses from speaking about the “content” of their testi-
mony, it prohibited them from discussing information they learned
outside the grand jury room. And, as to his grand jury testimony,
Henry maintained that his First Amendment free speech rights out-
weighed the state’s interests in confidentiality.
The district court partially granted and partially denied the
cross motions for summary judgment. The district court split
Henry’s First Amendment claims into two parts: (1) a challenge to
the Alabama grand jury secrecy law to the extent it prohibited
Henry from disclosing information he learned on his own outside
the grand jury room; and (2) a challenge to the Alabama grand jury
secrecy law’s prohibition against disclosing information he learned
within the grand jury room.
As to the first part, the district court concluded that, even
looking at section 12-16-215 “in the broadest sense,” it didn’t reach
information Henry learned before testifying to the grand jury. The
district court explained that section 12-16-215 was “directed toward
the disclosure of the grand jury’s actions,” which Henry didn’t seek
to disclose.
But the district court reached a different conclusion about
section 12-16-216. The district court explained that section 12-16-
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216’s key terms were undefined, which left the public “to use its
best guess as to the speech” prohibited by the statute. Section 12-
16-216 “appears to capture prior knowledge,” the district court rea-
soned, because that would include “knowledge of the ‘nature or
content’” of the physical evidence, the questions asked, the an-
swers to them, and any “other testimony taken during the grand
jury proceeding.” The district court explained that the Alabama
grand jury secrecy law was “not too different” from the Florida law
struck down by Butterworth. Because the plain text of the statute
would “arguably” allow for a prosecution against Henry if he were
to disclose information he learned outside the grand jury room, the
district court concluded that this “overly broad” language violated
Henry’s First Amendment free speech rights.
As to Henry’s challenge to the Alabama grand jury secrecy
law’s bar against him disclosing what he learned only “as a direct
result of his participation” as a witness, the district court sided with
the Attorney General. Reasoning that the grand jury secrecy law
was a content-based regulation of speech, the district court applied
strict scrutiny to Henry’s free speech claim. The district court con-
cluded that the Alabama grand jury secrecy law was narrowly tai-
lored to serve the state’s compelling interests in grand jury confi-
dentiality. And the district court found that the state’s interests in
grand jury confidentiality outweighed Henry’s First Amendment
free speech rights.
The district court declared section 12-16-216 unconstitu-
tional “as it applie[d] to Henry’s prior knowledge” and entered
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judgment for him to the extent the statute applied to information
learned outside the grand jury room. The district court entered
judgment for the Attorney General “on all other claims.” Henry
and the Attorney General appeal the district court’s judgment.
STANDARD OF REVIEW
We review de novo the district court’s summary judgment,
viewing the evidence and all factual inferences in favor of the non-
moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996). A district court should grant summary judgment
only when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We likewise review questions of constitutional law
de novo. Burns v. Town of Palm Beach, 999 F.3d 1317, 1330 (11th
Cir. 2021). And we review de novo “the legal question of stand-
ing.” Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349,
1351 (11th Cir. 2005).
DISCUSSION
We first address Henry’s appeal that the district court erred
in concluding that section 12-16-216 didn’t violate his First Amend-
ment free speech rights to disclose information he learned only by
virtue of being made a grand jury witness. Then we consider the
Attorney General’s cross appeal that the district court erred in con-
cluding that section 12-16-216 violated Henry’s free speech rights
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to the extent it prohibited grand jury witnesses from disclosing in-
formation they learned on their own before they testified. 2
HENRY’S APPEAL
The Butterworth Balancing Test
Our analysis of Henry’s appeal begins with the Supreme
Court’s decision in Butterworth. There, a reporter in Florida un-
covered “information relevant to alleged improprieties committed
by” the local prosecutor and sheriff’s office. 494 U.S. at 626. The
reporter testified before a grand jury investigating the misconduct
and was warned not to reveal his grand jury testimony. Id. Flor-
ida’s grand jury secrecy law prohibited the disclosure of a witness’s
grand jury testimony “or the content, gist, or import thereof.” Id.
at 627. The reporter sought a declaratory judgment in federal court
that the state’s secrecy law violated his First Amendment free
speech rights. Id. at 628.
2
The parties don’t appeal the district court’s conclusion that section 12-16-215
only prohibits the disclosure of the grand jurors’ actions (like their votes, de-
liberations, debates, and discussions), and, therefore, section 12-16-215 didn’t
prohibit Henry from disclosing the content of his grand jury testimony. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (ex-
plaining that “an appellant abandons a claim when he either makes only pass-
ing references to it or raises it in a perfunctory manner without supporting
arguments and authority”). Thus, our focus is on section 12-16-216 as it ap-
plies to information a witness learned inside the grand jury room (Henry’s ap-
peal) and outside the grand jury room (the Attorney General’s cross appeal).
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The Supreme Court held that the Florida grand jury secrecy
law violated the First Amendment to the extent it prohibited the
reporter from making “a truthful statement of information he ac-
quired on his own” before becoming a grand jury witness. Id. at
636. The “effect” of Florida’s grand jury secrecy law on the re-
porter’s ability to discuss his prior knowledge was “dramatic,” the
Supreme Court wrote:
[B]efore he is called to testify in front of the grand
jury, respondent is possessed of information on mat-
ters of admitted public concern about which he was
free to speak at will. After giving his testimony, re-
spondent believes he is no longer free to communi-
cate this information . . . .
Id. at 635.
The Butterworth Court explained that the grand jury has
historically “served an important role in the administration of crim-
inal justice,” with grand jury secrecy protecting a number of key
government interests, including: (1) encouraging prospective wit-
nesses to voluntarily come forward; (2) encouraging full and frank
testimony by protecting witnesses from retribution and induce-
ment; (3) preventing the target of the grand jury investigation from
fleeing or trying to influence grand jurors; and (4) protecting the
reputation of those exonerated by the grand jury. Id. at 629–30 (cit-
ing Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218-
19 (1979)). The Supreme Court cautioned, however, that “the in-
vocation of grand jury interests is not ‘some talisman that dissolves
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all constitutional protections.’” Id. at 630 (quoting United States v.
Dionisio, 410 U.S. 1, 11 (1973)). Rather, “grand juries are expected
to ‘operate within the limits of the First Amendment.’” Id. (quot-
ing Branzburg v. Hayes, 408 U.S. 665, 708 (1972)). Thus, the Court
balanced the reporter’s “asserted First Amendment rights against
Florida’s interests in preserving the confidentiality of its grand jury
proceedings.” Id.The application of the balancing test in Butterworth tipped
in favor of the reporter’s First Amendment free speech rights. On
the reporter’s side of the scale, the Supreme Court explained that
his desire to publish information about “alleged governmental mis-
conduct” was speech “lying at the core of the First Amendment.”
Id. at 632.
On Florida’s side, the Court said that “[s]ome of [the state’s]
interests [were] not served at all by the [state’s] ban on disclosure”
of a witness’s knowledge of information obtained outside the grand
jury, “and those that [were] served [were] not sufficient to sustain
the statute.” Id. at 632. As to the “need to keep information from
the targeted individual in order to prevent his escape,” the Court
determined that this interest goes away when “an investigation
ends” because the target will have either been exonerated or in-
dicted. Id. As to the state’s concern that “some witnesses will be
deterred from presenting testimony due to fears of retribution,”
the Court explained that this interest wasn’t served by the prohibi-
tion for two reasons: (1) “any witness is free not to divulge his own
testimony”; and (2) the part of Florida’s grand jury secrecy law
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“which prohibits the witness from disclosing the testimony of an-
other witness remains enforceable.” Id. at 633.
As to the state’s “interest in preventing the subornation of
grand jury witnesses who will later testify at trial,” the Court wrote
that this interest was “marginal” because Florida’s discovery rules
required pretrial disclosure of the names of witnesses to the ac-
cused, because Florida had criminal sanctions for tampering with
witnesses, and because trial courts can use their subpoena and con-
tempt powers to make hesitant witnesses testify. Id. at 633–34.
And, as to the state’s interest in preserving reputational interests,
the Butterworth Court reasoned that this interest was served by
the prohibition, but “reputational interests alone cannot justify the
proscription of truthful speech.” Id. at 634. Weighing the re-
porter’s First Amendment free speech rights against the state’s in-
terests in confidentiality, the Supreme Court concluded that the
state’s interests were “not sufficient to overcome” the reporter’s
“First Amendment right to make a truthful statement of infor-
mation he acquired on his own.” Id. at 636.
Butterworth provides the balancing test we must apply to
Henry’s claim that the Alabama grand jury secrecy law violates his
First Amendment free speech rights. We balance Henry’s “asserted
First Amendment rights against [the state’s] interests in preserving
the confidentiality of its grand jury proceedings.” See id. at 630.
The “burden of demonstrating this balance rests upon” Henry, be-
cause he is “the private party seeking disclosure.” See Douglas Oil,
441 U.S. at 223.
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Henry contends that strict scrutiny applies to his First
Amendment challenge because the Alabama grand jury secrecy
law is a content-based regulation of speech. See Otto v. City of
Boca Raton, 981 F.3d 854, 861 (11th Cir. 2020) (noting that “[s]trict
scrutiny ordinarily applies to content-based restrictions of speech”).
To survive strict scrutiny, a law must be “narrowly tailored to serve
compelling state interests.” Id. at 861–62 (quoting Reed v. Town
of Gilbert, 576 U.S. 155, 163 (2015)).
But Butterworth tells us that we apply a balancing test—and
not strict scrutiny—to a grand jury witness’s claim that the state’s
grand jury secrecy law violates his First Amendment free speech
rights. We apply the balancing test—and not strict scrutiny—be-
cause Butterworth didn’t require that the state’s grand jury secrecy
law had to be narrowly tailored to serve a compelling state interest,
which is inconsistent with applying strict scrutiny. See Doe v. Bell,
969 F.3d 883, 888 n.6 (8th Cir. 2020) (noting that Butterworth “did
not apply strict scrutiny when evaluating a state secrecy require-
ment concerning the testimony of grand jury witnesses”). And we
apply the balancing test—and not strict scrutiny—because Butter-
worth put the burden on the witness to show that his First Amend-
ment free speech rights outweighed the state’s interests, which is
also inconsistent with applying strict scrutiny. Compare Douglas
Oil, 441 U.S. at 223 (“It is clear . . . that disclosure is appropriate
only in those cases where the need for it outweighs the public in-
terest in secrecy, and that the burden of demonstrating this balance
rests upon the private party seeking disclosure.”), with Otto, 981
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F.3d at 868 (explaining that “[t]he government carries the burden
of proof” under strict scrutiny).
Where the Supreme Court has a “general” legal standard but
applies a more “specific” test to a specific type of claim, we use the
more specific test where it applies. See Powell v. Barrett, 541 F.3d
1298, 1302 (11th Cir. 2008) (en banc). That is the case here. In
general, strict scrutiny applies to content-based regulations of
speech, Otto, 981 F.3d at 861, but the more specific Butterworth
balancing test applies to a grand jury witness’s First Amendment
challenge to a state’s grand jury secrecy law, 494 U.S. at 630. We
therefore apply the Butterworth balancing test, weighing Henry’s
“asserted First Amendment rights against [Alabama’s] interests in
preserving the confidentiality of its grand jury proceedings.” Id.Henry’s Asserted First Amendment Rights
As to Henry’s asserted First Amendment rights, he argues
that he has a strong interest in publicly disclosing his allegations of
prosecutorial misconduct. We agree. The “publication of infor-
mation relating to alleged governmental misconduct” is speech “ly-
ing at the core of the First Amendment.” Butterworth, 494 U.S. at
632. Here, Henry alleges that: (1) there were leaks about the grand
jury coming from Deputy Attorney General Hart; (2) some of these
leaks were to Coleman, a lobbyist, who used the sensitive infor-
mation to his benefit in political campaigns; and (3) Henry believed
that Deputy Attorney General Hart engaged in prosecutorial mis-
conduct during his grand jury testimony. Because these
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accusations, if true, raise a claim of “governmental misconduct,”
they go to the core of the First Amendment. See id.Alabama’s Interests in Preserving Confidentiality
As to Alabama’s interests in confidentiality, the grand jury
has been an important check on government power since even be-
fore the Founding. As early as the fourteenth century, the grand
jury “was ‘[n]o longer required to make known to the court the
evidence upon which they acted’ but instead was ‘sworn to keep
their proceedings secret by an oath which contained no reservation
in favor of the government.’” Doe, 969 F.3d at 889–90 (quoting
George J. Edwards, Jr., The Grand Jury: Considered from an His-
torical, Political and Legal Standpoint, and the Law and Practice
Relating Thereto 26–28 (Cosimo 2009) (1906)). By the seventeenth
century, the grand jury served “to safeguard citizens against an
overreaching Crown and unfounded accusations.” Butterworth,
494 U.S. at 629. Secrecy was essential to the grand jury’s ability to
check prosecutorial overreach; the “tradition of secrecy surround-
ing grand jury proceedings evolved” in part to ensure the grand
jury’s “impartiality.” Id.“When the institution of the grand jury crossed from Eng-
land to the American colonies, the rule of grand jury secrecy came
with it.” Doe, 969 F.3d at 890. “The Framers later included the
Grand Jury Clause in the Fifth Amendment, making grand jury se-
crecy an implicit part of American criminal procedure.” Id.
(cleaned up). Today, grand jury secrecy “remains important to
safeguard a number of” government interests. Butterworth, 494
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U.S. at 630; Douglas Oil, 441 U.S. at 218 (“We consistently have
recognized that the proper functioning of our grand jury system
depends upon the secrecy of grand jury proceedings.”).
The Supreme Court has identified four interests served by
grand jury secrecy laws: (1) “many prospective witnesses would be
hesitant to come forward voluntarily, knowing that those against
whom they testify would be aware of that testimony”; (2) “wit-
nesses who appeared before the grand jury would be less likely to
testify fully and frankly, as they would be open to retribution as
well as to inducements”; (3) “those about to be indicted [might]
flee, or [might] try to influence individual grand jurors to vote
against indictment”; and (4) people “accused but exonerated by the
grand jury” would be “held up to public ridicule.” Douglas Oil, 441
U.S. at 219.
We too have recognized the importance of grand jury se-
crecy, even after an investigation has concluded. “The grand jury,
as an institution, has long been understood as a ‘constitutional fix-
ture in its own right,’ operating independently of any branch of the
federal government.” Pitch v. United States, 953 F.3d 1226, 1228–
29 (11th Cir. 2020) (en banc) (quoting United States v. Williams,
504 U.S. 36, 47 (1992)). The grand jury’s independence allows it “to
serve as a buffer between the government and the people with re-
spect to the enforcement of the criminal law.” Id. at 1229. “But
the ability of the grand jury to serve this purpose,” we have said,
“depends upon maintaining the secrecy of its proceedings.” Id.
“The long-established policy of upholding the secrecy of the grand
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21-11483 Opinion of the Court 21
jury helps to protect the innocent accused from facing unfounded
charges, encourages full and frank testimony on the part of wit-
nesses, and prevents interference with the grand jury’s delibera-
tions.” Id. The state’s interests in the confidentiality of the grand
jury proceeding are interests “of the highest order.” See Doe, 969
F.3d at 889–92 (citation omitted).
Finally, the state has an interest in the confidentiality of “in-
formation,” including grand jury information, that is “the [s]tate’s
own creation.” See Butterworth, 494 U.S. at 636 (Scalia, J., concur-
ring). The Supreme Court has long recognized the state’s interest
in the confidentiality of records the state creates as a critical and
necessary result of enforcing the law and running the people’s gov-
ernment. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 49 (1987)
(recognizing a state’s “acknowledged public interest” in the confi-
dentiality of child services records). And so have we. See, e.g., Jor-
dan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322, 1338 (11th Cir.
2020) (examining Georgia’s Lethal Injection Secrecy Act and recog-
nizing “that the confidentiality provided by the Act is necessary to
protect Georgia’s source of pentobarbital for use in executions”);
Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 2006) (recognizing that
“parole files are ‘confidential state secrets’ under Georgia law” (ci-
tation omitted)).
Balancing Henry’s Asserted First Amendment Rights
Against the State’s Interests in Preserving Confidentiality
Having identified both sides of the balancing test, we must
weigh Henry’s “asserted First Amendment rights against [the
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22 Opinion of the Court 21-11483
state’s] interests in preserving the confidentiality of its grand jury
proceedings.” See Butterworth, 494 U.S. at 630. We conclude that
the balance weighs in favor of continued confidentiality in grand
jury information a witness learned by virtue of being made a wit-
ness. Here’s why.
We begin with Henry’s asserted First Amendment rights.
Henry seeks to disclose information about alleged government
misconduct inside the grand jury room. Henry’s asserted First
Amendment rights are the same as the First Amendment rights the
reporter asserted in Butterworth. See id. at 632 (“Florida seeks to
punish the publication of information relating to alleged govern-
mental misconduct . . . .”). So, that side of the scale in Butterworth
and in Henry’s case have the same weight.
But, on the other side of the scale, there are three critical
differences between this case and Butterworth that tip the balance
in favor of Alabama. First, in Butterworth, the Supreme Court ex-
plained that “[s]ome of” the state’s interests were “not served at all
by the Florida ban on disclosure” of information the witness
learned before he testified. See id. This was so because there was
no connection between Florida’s interests in encouraging witness
cooperation and frank and full testimony and a witness disclosing
information that he learned before he entered the grand jury room.
“[T]he concern that some witnesses will be deterred from present-
ing testimony due to fears of retribution” was, the Supreme Court
reasoned, “not advanced by” Florida’s prohibition on disclosing in-
formation the witness knew before he testified. See id. at 633.
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21-11483 Opinion of the Court 23
Here, unlike in Butterworth, Alabama’s interests are all
served by the state’s ban on witnesses disclosing what they learned
inside the grand jury room. As to the state’s interest in witness
cooperation, a witness will be less likely to cooperate in a grand
jury investigation if he knows that his testimony will be disclosed
after the investigation has ended. The knowledge that his testi-
mony may be disclosed in the future will chill cooperation out of
fear of unwanted scrutiny or retaliation.
The same applies to the state’s interest in encouraging truth-
ful testimony. If the grand jury proceedings were made public,
“witnesses who appeared before the grand jury would be less likely
to testify fully and frankly, as they would be open to retribution as
well as to inducements.” Id. at 630 (quoting Douglas Oil, 441 U.S.
at 219). A witness is going to be more candid if he knows that his
testimony will not be exposed down the line.
As to the state’s interest in making sure that the target of a
grand jury investigation doesn’t escape, that’s obviously less of a
concern once the target has been charged. See id. at 632. Speaker
Hubbard, after all, has already been indicted and imprisoned. But
even though the grand jury investigation here is over, there may
be accomplices and coconspirators that a future grand jury could
indict. Keeping the grand jury proceedings secret ensures that not-
yet-indicted accomplices and coconspirators do not destroy evi-
dence and do not flee. Grand jury secrecy safeguards the state’s
ability to bring future charges—either against Speaker Hubbard or
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24 Opinion of the Court 21-11483
outstanding accomplices and coconspirators—if new evidence
comes to light.
The state also has “a substantial interest in seeing that ‘per-
sons who are accused but exonerated by the grand jury will not be
held up to public ridicule.’” See id. at 634 (citation omitted). The
grand jury may have considered evidence of other crimes Speaker
Hubbard committed that didn’t result in his indictment. See Doe,
969 F.3d at 893 (explaining that the state has a “compelling interest
in ensuring individual members of the grand jury do not use the
information they gathered as part of the grand jury process to im-
pugn the innocence of the accused with charges they could not
agree to collectively”). And other people besides Speaker Hub-
bard—like grand jury witnesses or people mentioned by wit-
nesses—could by harmed by the disclosure of grand jury infor-
mation. Grand jurors hear evidence about people who aren’t tar-
gets of the investigation and who aren’t indicted. They also hear
evidence that isn’t subject to adversarial testing and may be hearsay
or otherwise inadmissible and thus less trustworthy. Preventing
the disclosure of grand jury testimony that could damage a third
party’s reputation is an important state interest that survives the
grand jury’s discharge.
Second, in Butterworth, the state had no confidentiality in-
terest in the reporter’s information because he acquired the infor-
mation on his own. See 494 U.S. at 635. But here, Henry wants to
disclose grand jury information he acquired “only by virtue of be-
ing made a witness.” See id. at 636 (Scalia, J., concurring). The
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21-11483 Opinion of the Court 25
state has an interest in ensuring that “information of [its] own cre-
ation”—including grand jury proceedings—remains confidential.
See id.; cf. Ritchie, 480 U.S. at 49 (recognizing a state’s “acknowl-
edged public interest” in the confidentiality of child services rec-
ords). While the state’s confidentiality interest in information of its
own creation wasn’t served in Butterworth by barring the reporter
from disclosing information he acquired on his own, it’s served
here by barring Henry from disclosing information he learned in-
side the grand jury room.
Third, the Butterworth Court recognized the distinction, for
First Amendment purposes, between information that a witness
had before he testified (like the reporter in Butterworth) and infor-
mation that the witness learned in a judicial proceeding (like what
Henry wants to disclose). The Butterworth reporter had a “right
to divulge information of which he was in possession before he tes-
tified before the grand jury.” 494 U.S. at 632. But that right did not
necessarily extend to “information which [the reporter] may have
obtained as a result of his participation in the proceedings of the
grand jury.” Id. As to information obtained from grand jury pro-
ceedings, the Court analogized it to information “obtained through
[civil] discovery.” Id. at 631. It “did not offend the First Amend-
ment,” the Court explained, to “prohibit[] a newspaper from pub-
lishing information which it had obtained through discovery pro-
cedures.” Id. at 631–32.
Justice Scalia, in his Butterworth concurring opinion, also
drew a sharp line between information that a witness knew before
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26 Opinion of the Court 21-11483
he testified and information he learned in the grand jury room.
“[T]here is considerable doubt whether a witness can be prohib-
ited, even while the grand jury is sitting, from making public what
he knew before he entered the grand jury room.” Id. at 636 (Scalia,
J., concurring). But for information that a witness learned “only by
virtue of being made a witness,” “[t]here may be quite good rea-
sons why the [s]tate would want the . . . information . . . to remain
confidential even after the term of the grand jury has expired.” Id.Because Henry, unlike the reporter in Butterworth, wants to dis-
close information he learned only by virtue of being made a grand
jury witness, Alabama, unlike Florida, had “quite good reasons” for
wanting information about the grand jury proceedings to remain
confidential.
To be sure, some of the state’s interests in grand jury secrecy
diminish “once a grand jury has been discharged.” See id. at 632(majority opinion). “When an investigation ends,” the Supreme
Court has explained, “there is no longer a need to keep information
from the targeted individual in order to prevent his escape.” Id.“There is also no longer a need to prevent the importuning of
grand jurors” once their deliberations have ended. Id. at 633–32.
But the other important state interests remain “even after
the term of the grand jury has expired.” See id. at 636 (Scalia, J.,
concurring). In Pitch, for example, a historian petitioned the dis-
trict court “for the grand jury transcripts related to the Moore’s
Ford Lynching—a horrific event involving the murders of two Af-
rican American couples for which no one has ever been charged—
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21-11483 Opinion of the Court 27
to be used in his book about the lynching.” 953 F.3d at 1229. The
grand jury records in the case were decades old because the lynch-
ing happened in 1946. Id. at 1230. Although the grand jury inves-
tigating the crime “heard sixteen days of testimony from countless
witnesses,” it “failed to charge anyone with the murders” and the
“case remains unsolved.” Id. Even though the crime happened
over seventy years ago and most witnesses to the crime were prob-
ably deceased, we explained that the request for the grand jury
transcripts “implicate[d] the long-established policy that grand jury
proceedings in federal courts should be kept secret.” Id. at 1232.
To sum up, Alabama’s interests in prohibiting Henry from
disclosing grand jury information he learned only by virtue of be-
ing made a witness are weightier than Florida’s interests were in
prohibiting the Butterworth reporter from disclosing information
he learned on his own outside the grand jury. And the weightier
interests tip the balancing test in favor of the Attorney General.
THE ATTORNEY GENERAL’S CROSS APPEAL
We now turn to the Attorney General’s cross appeal of the
district court’s declaration for Henry that section 12-16-216 vio-
lated his First Amendment free speech rights to the extent it pro-
hibited him from disclosing information he learned before his
grand jury testimony. We first address the Attorney General’s ar-
gument that Henry lacks standing. We then consider whether the
district court erred in concluding that section 12-16-216 prohibited
Henry from disclosing information he learned outside the grand
jury room.
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28 Opinion of the Court 21-11483
Standing
The Attorney General argues that Henry lacks standing to
challenge section 12-16-216 because he has no “inclination to en-
force the” state’s grand jury secrecy law “against anyone in the
manner Henry fears.”
Article III limits the subject matter jurisdiction of federal
courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2.
“The tripartite test for Article III standing” is “well known”:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or im-
minent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury
and the conduct complained of—the injury has to be
fairly traceable to the challenged action of the defend-
ant, and not the result of the independent action of
some third party not before the court. Third, it must
be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1119 (11th Cir. 2022)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
“Because the elements of standing ‘are not mere pleading require-
ments but rather an indispensable part of the plaintiff’s case, each
element must be supported . . . with the manner and degree of ev-
idence required at the successive stages of the litigation.’” Jacobson
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21-11483 Opinion of the Court 29
v. Fla. Sec’y of State, 974 F.3d 1236, 1245 (11th Cir. 2020) (citation
omitted).
We begin with injury in fact. The Attorney General doesn’t
argue that Henry failed to establish a concrete and particularized
injury. Wisely so; alleged First Amendment free speech violations
are concrete and particular injuries for purposes of Article III stand-
ing. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926
(11th Cir. 2020) (en banc) (explaining that “[v]iolations of the rights
to free speech” are “intangible harms that are also both direct and
concrete”); Speech First, 32 F.4th at 1119 (“There is no doubt—or
dispute—that the [plaintiffs’] claimed injury is ‘concrete and partic-
ularized’ . . . because they have alleged a deprivation of their First
Amendment right to free speech.”). “The standing question here
thus turns on whether” Henry’s injury is “imminent, not conjec-
tural or hypothetical.” See Speech First, 32 F.4th at 1119.
To determine whether a plaintiff bringing a First Amend-
ment free speech claim established an imminent injury, “we simply
ask whether the operation or enforcement of the government pol-
icy would cause a reasonable would-be speaker to self-censor—
even where the policy falls short of a direct prohibition against the
exercise of First Amendment rights.” Id. at 1120 (cleaned up). “In
making that assessment, the threat of formal discipline or punish-
ment is relevant to the inquiry, but it is not decisive.” Id. “The
fundamental question under our precedent,” the Speech First
Court explained, is “whether the challenged policy ‘objectively
chills’ protected expression.” Id.
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30 Opinion of the Court 21-11483
Applying Speech First to Henry’s free speech claims, the
question is whether the Alabama grand jury secrecy law objec-
tively chills Henry’s free speech rights. Id. We conclude that it
does. Henry challenged section 12-16-216, facially and as applied,
as an unconstitutional restriction on his ability to disclose what he
knew about the investigation into Speaker Hubbard, his grand jury
testimony, and the grand jurors’ questions. The Attorney Gen-
eral’s position in the district court and here is that section 12-16-216
prohibits Henry from disclosing his grand jury testimony and what
he learned inside the grand jury room. That position would objec-
tively chill Henry’s right to speak about his grand jury testimony
and make a reasonable person self-censor. Section 12-16-216
doesn’t “fall[] short of a direct prohibition against the exercise of
[his] First Amendment rights”—it is a direct prohibition against the
exercise of his First Amendment rights. See id. (cleaned up). Like
Speech First, that is an imminent injury. See id.
That part of Henry’s claim also includes speech—infor-
mation he learned outside the grand jury room—that the Attorney
General will not prosecute under section 12-16-216 doesn’t change
our conclusion. Once Henry has established at least some immi-
nent injury to his free speech rights, he has established Article III
injury in fact. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir.
2019) (“Article III standing is not a ‘You must be this tall to ride’
measuring stick. ‘There is no minimum quantitative limit required
to show injury; rather, the focus is on the qualitative nature of the
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21-11483 Opinion of the Court 31
injury, regardless of how small the injury may be.’” (citation omit-
ted)).
For this reason, our decision in Doe v. Pryor, 344 F.3d 1282(11th Cir. 2003) is distinguishable. We concluded in Doe that the
plaintiffs lacked standing to challenge an Alabama statute criminal-
izing “deviate sexual intercourse” partly because the Attorney Gen-
eral had no intention of enforcing the law following Lawrence v.
Texas, 539 U.S. 558 (2003). The Doe plaintiffs did not establish an
injury in fact because their “complaint contain[ed] no allegations”
supporting “a conclusion that their fear” that their First Amend-
ment rights would be restrained was “objectively reasonable.” 344
F.3d at 1287. But here, Henry’s fear that his First Amendment
rights will be restrained is objectively reasonable—the Attorney
General has told Henry that he would enforce section 12-16-216
against Henry for disclosing information he learned inside the
grand jury room. That’s enough for injury in fact.
We also conclude that Henry established that his injury was
fairly traceable to the Attorney General and redressable by a favor-
able decision. His injury was fairly traceable to the Attorney Gen-
eral because the grand jury investigation into Speaker Hubbard
was spearheaded by the Attorney General’s office and Deputy At-
torney General Hart. Deputy Attorney General Hart led the inves-
tigation, subpoenaed Henry as a witness, and warned Henry about
disclosing his grand jury testimony. See Ala. Code 36-15-13 (grant-
ing the Attorney General and his assistants the power to seek in-
dictments before the grand jury). As Deputy Attorney General
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32 Opinion of the Court 21-11483
Hart told Baron Coleman, “the [g]rand [j]ury [s]ecrecy thing . . .
shut[s] you down because you go in there and we say ‘Don’t you
speak about this.’” Deputy Attorney General Hart believed that
“we are [on] utterly solid ground shutting people up.” Any en-
forcement of the Alabama grand jury secrecy law against Henry for
disclosing grand jury information would be “fairly traceable” to the
Attorney General.
As to redressability, an injunction against the Attorney Gen-
eral prohibiting him from enforcing section 12-16-216 against
Henry so Henry could disclose the content of his grand jury testi-
mony would redress his alleged First Amendment violation. Dep-
uty Attorney General Hart, if enjoined from enforcing section 12-
16-216 against Henry, could no longer “shut [Henry] down” from
speaking about the grand jury proceedings. Thus, Henry has stand-
ing to bring his First Amendment challenge to section 12-16-216.
Does Section 12-16-216 Prohibit Henry from Disclosing Infor-
mation He Learned Before He Testified as a Witness?
The district court’s declaration that section 12-16-216 vio-
lated Henry’s First Amendment free speech rights because it pro-
hibited him from disclosing information he knew before his grand
jury testimony relied on two premises. The first premise was that
section 12-16-216 could arguably be read to prohibit a grand jury
witness from disclosing information he learned before he testified.
The second premise was that, because the statute arguably prohib-
ited a grand jury witness from disclosing information he learned
outside the grand jury room, section 12-16-216, like the Florida
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21-11483 Opinion of the Court 33
statute in Butterworth, violated the witness’s First Amendment
free speech rights. But the first premise is wrong; section 12-16-216
can’t reasonably be read to prohibit the disclosure of information
learned outside the grand jury room like the statute in Butter-
worth. We agree with the Attorney General that the “clear focus”
of the statute “is on protecting the secrecy of the grand jury pro-
ceedings” and “not on prohibiting witnesses from discussing infor-
mation they knew prior to testifying.”
“[T]he overbreadth doctrine permits the facial invalidation
of laws that inhibit the exercise of First Amendment rights if the
impermissible applications of the law are substantial when ‘judged
in relation to the statute’s plainly legitimate sweep.’” City of Chi-
cago v. Morales, 527 U.S. 41, 52 (1999) (quoting Broadrick v. Okla-
homa, 413 U.S. 601, 615 (1973)). This analysis has two steps. First,
we “construe the challenged statute.” United States v. Williams,
553 U.S. 285, 293 (2008). Second, we ask “whether the statute, as
we have construed it, criminalizes a substantial amount of pro-
tected expressive activity.” Id. at 297. Satisfying the second step of
the overbreadth doctrine “is not easy to do.” Doe v. Valencia Coll.,
903 F.3d 1220, 1232 (11th Cir. 2018). And Henry, as the plaintiff
alleging overbreadth, has “the burden of demonstrating, from the
text of the law and from actual fact, that substantial overbreadth
exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (cleaned up).
We first construe section 12-16-216. The district court de-
termined that section 12-16-216 was overbroad and prohibited the
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34 Opinion of the Court 21-11483
disclosure of information a witness knew before testifying because:
(1) the law doesn’t define its terms, leaving the public to “guess”
what speech it captures; (2) the law is “not too different” from the
Florida grand jury secrecy law struck down by Butterworth; and
(3) the law’s plain text would “arguably” sanction Henry for dis-
closing knowledge he obtained before he testified. Thus, the dis-
trict court concluded that the law “captures a witness’s prior
knowledge,” just like the Florida grand jury secrecy law in Butter-
worth. But section 12-16-216 doesn’t prohibit the disclosure of in-
formation a witness learned outside the grand jury room.
Our starting point is the text. See United States v. DBB, Inc.,
180 F.3d 1277, 1281 (11th Cir. 1999) (“The starting point for all stat-
utory interpretation is the language of the statute itself.”). Section
12-16-216 prohibits the disclosure of four things. First, it prohibits
a grand jury witness from disclosing “any knowledge of the form,
nature or content of any physical evidence presented to” the grand
jury. Ala. Code § 12-16-216. Because the first prohibition expressly
applies to physical evidence “presented to” the grand jury, it
doesn’t apply to the disclosure of information the witness knew be-
fore he testified.
The second and third prohibitions in the Alabama grand jury
secrecy law are related. The law prohibits a grand jury witness
from disclosing “any knowledge of the form, nature or content of
any question propounded to any person within or before any grand
jury.” Id. And the law prohibits the disclosure of “any comment
made by any person in response thereto”—any answer given by a
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21-11483 Opinion of the Court 35
grand jury witness to a question. Id. Because the second and third
prohibitions apply to questions asked to a grand jury witness and
the answers given to those questions, they too don’t apply to the
disclosure of information learned outside the grand jury room.
That leaves the law’s fourth prohibition. The grand jury se-
crecy law prohibits the disclosure of “any other evidence, testi-
mony or conversation occurring or taken therein.” Id. (emphasis
added). The limiting language at the end of the fourth prohibition
is key. It limits the statute’s reach to evidence, testimony, or con-
versation that occurred or was taken inside the grand jury room—
matters that occurred or were taken “therein.” Because of this lim-
iting language, the fourth prohibition doesn’t reach the disclosure
of information a witness knew before testifying.
Henry argues that section 12-16-216 prohibits the disclosure
of information a witness “knew prior to entering the grand jury
room” because it prohibits the witness from disclosing “at any
time, directly or indirectly, conditionally or unconditionally, by
any means whatever,” the four topics covered by the grand jury
secrecy law. But this language doesn’t extend the statute to a wit-
ness’s prior knowledge. It regulates the duration of the prohibition
against disclosing information learned within the grand jury room
and provides that any type of disclosure violates the law. This lan-
guage can’t be read to prohibit the disclosure of information a
grand jury witness learned outside the grand jury room. As the
Attorney General correctly argues, this language explains the
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36 Opinion of the Court 21-11483
“litany of ways” information can be disclosed but is silent as to
“what” can’t be disclosed.
Reading section 12-16-216 to cover only evidence and testi-
mony “occurring or taken” in the grand jury room is consistent
with the other parts of Alabama’s grand jury secrecy law. See
United States v. Velez, 586 F.3d 875, 877 (11th Cir. 2009) (“In inter-
preting a statutory provision, we look to the language of the provi-
sion itself, the specific context in which that language is used, and
the broader context of the statute as a whole.” (cleaned up)). First,
the Alabama Legislature’s findings stress that “it is essential to the
fair and impartial administration of justice that all grand jury pro-
ceedings be secret.” Ala. Code § 12-16-214 (emphasis added). The
Legislature’s findings focus on the secrecy of the “proceedings,”
not on events occurring outside of those proceedings.
Second, the Alabama grand jury secrecy law prohibits the
disclosure by a witness of “any knowledge or information pertain-
ing to any grand juror’s questions, considerations, debates, deliber-
ations, opinions or votes on any case, evidence, or other matter
taken within or occurring before any grand jury.” Id. § 12-16-215
(emphasis added). Like section 12-16-216, this companion section
contains limiting language showing that its secrecy requirements
reach only information “taken within or occurring before” a grand
jury proceeding. The focus of both sections is on the information
disclosed within the grand jury room.
It doesn’t matter that the terms of section 12-16-216 are un-
defined. Where a statutory term is undefined, “we look to the plain
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21-11483 Opinion of the Court 37
and ordinary meaning of the statutory language as it was under-
stood at the time the law was enacted.” United States v. Chinchilla,
987 F.3d 1303, 1308 (11th Cir. 2021); see also CBS Inc. v. Prime-
Time 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (“In the
absence of a statutory definition of a term, we look to the common
usage of words for their meaning.” (citation omitted)). The ordi-
nary meaning of the key language in section 12-16-216 (“occurring
or taken therein”), coupled with the Legislature’s findings and the
other sections of the Alabama grand jury secrecy law, shows that
section 12-16-216 applies only to evidence, questions, testimony,
and conversations occurring or taken within the grand jury pro-
ceeding. The failure to define terms with a readily discernable or-
dinary meaning doesn’t leave the public guessing about the scope
of section 12-16-216.
There are two important differences between the Alabama
grand jury secrecy law and the Florida grand jury secrecy law in
Butterworth. First, section 12-16-216 contains language limiting its
scope to evidence, testimony, and conversations that took place in-
side the grand jury room. See Ala. Code § 12-16-216 (restricting the
law to the disclosure of matters “occurring or taken therein”). The
Florida grand jury secrecy law in Butterworth didn’t have the same
limiting language. See 494 U.S. at 627. Here, because the text of
section 12-16-216 is limited to information “occurring or taken” be-
fore the grand jury, it cannot be read to prohibit the disclosure of
information learned outside the grand jury room.
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38 Opinion of the Court 21-11483
Second, the Alabama grand jury secrecy law prohibits the
disclosure of the “form, nature or content” of physical evidence, of
the questions asked to witnesses, as well as the disclosure of “any
comment made . . . in response thereto,” Ala. Code § 12-16-216,
while the Florida law more broadly prohibited disclosure of the
“gist” or “import” of testimony, Butterworth, 494 U.S. at 627. This
distinction matters: “The Florida statute specifically precluded dis-
closing the ‘gist or import’ of the testimony, which clearly encom-
passed the substance of the knowledge the grand jury witness had
before entering the grand jury process.” Hoffman-Pugh v. Keenan,
338 F.3d 1136, 1139 (10th Cir. 2003). Because this critical language
is missing from the Alabama statute, it’s wrong to say, as the dis-
trict court did, that the Alabama grand jury secrecy law is “not too
different” from the Florida law condemned by Butterworth. It’s
different enough to make a difference.
In sum, considering the text and structure of section 12-16-
216, the statutory scheme as a whole, and the differences between
the Alabama and the Florida grand jury secrecy laws, the district
court erred in concluding that section 12-16-216 could “arguably”
sanction Henry for disclosing his prior knowledge. It couldn’t.
But, to the extent there is any doubt, we will “uphold a state
statute against a facial challenge if the statute is readily susceptible
to a narrowing construction that avoids constitutional infirmities.”
Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1256 n.6
(11th Cir. 2005) (citation omitted). Although we will not “rewrite
the clear terms of a statute in order to reject a facial challenge,” id.USCA11 Case: 21-11483 Date Filed: 08/18/2022 Page: 39 of 40
21-11483 Opinion of the Court 39
(citation omitted), our occasional “reluctance” to apply a limiting
construction “is not an iron-clad rule,” Cheshire Bridge Holdings,
LLC v. City of Atlanta, 15 F.4th 1362, 1367 (11th Cir. 2021). Rather,
we will not invoke facial overbreadth “when a limiting construc-
tion has been or could be placed on the challenged statute.” Id.(quoting Broadrick, 413 U.S. at 613).
Here, a limiting construction has and can be placed on sec-
tion 12-16-216. The Attorney General has read the Alabama grand
jury secrecy law not to prohibit the disclosure of information a wit-
ness learned outside the grand jury room; as we have explained,
the plain language of the statute supports this reading of the stat-
ute. Because the statute can be read not to prohibit disclosure of
information a witness learned outside the grand jury room without
rewriting its plain terms, we should read it that way if there’s any
lingering doubt about its scope. See id.; see also United States v.
Waymer, 55 F.3d 564, 569 (11th Cir. 1995) (explaining that the
“[a]pplication of the overbreadth doctrine is employed as a last re-
sort and is not to be invoked when a limiting construction has been
or could be placed on the challenged statute”).
CONCLUSION
As to Henry’s appeal of what he learned only by virtue of
being made a grand jury witness, the district court did not err in
concluding that the state’s interests in continued grand jury confi-
dentiality outweighed Henry’s First Amendment free speech
rights. We therefore affirm the district court’s partial summary
judgment for the Attorney General.
USCA11 Case: 21-11483 Date Filed: 08/18/2022 Page: 40 of 40
40 Opinion of the Court 21-11483
But as to the Attorney General’s cross appeal of what Henry
learned on his own outside the grand jury room, the district court
erred in concluding that section 12-16-216 arguably prohibited the
disclosure of a witness’s prior knowledge. We therefore reverse
the district court’s partial summary judgment for Henry, and re-
mand with instructions for the district court to enter judgment for
the Attorney General.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.