Henry v. Marshall

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIAM E. HENRY, )

)

Plaintiff, )

)

v. )

) Case No. 2:17-cv-638-RAH-JTA

STEVEN T. MARSHALL, in his official ) (WO)

capacity as Attorney General of the )

State of Alabama, )

)

Defendant. )

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

1

observations and opinions of the proceeding, those involved in it, and what

transpired therein.1

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

jury proceeding”).

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

1 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.

I. BACKGROUND

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.

2 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

grand jury.3

3 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

4 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.

5 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.”

(emphasis added).

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.

II. 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.

III. ANALYSIS

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

6 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

overbreadth.

B. Henry’s Facial Challenge to the Act’s Restrictions on Disclosure of

“Prior Knowledge”

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

matters.

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. 20-

22.) 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 § 12-

16-215 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, § 12-

16-216’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

7 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.

8 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,

119.9

9 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,

4. Remedy

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,

10 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

this case.

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

11 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

of sources)).

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.

109-5.)

IV. CONCLUSION

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

DENIED.

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