March 17, 2015
By A.J. Million, Senior Associate
In recent months, public outrage and demonstrations have surrounded a grand jury investigation in Ferguson, Missouri, where a grand jury declined to indict Officer Darren Wilson in connection with the shooting death of Michael Brown. Fueling the riots were comments made by the prosecutor after he released the transcripts of witness testimony before the grand jury.
Contrary to a longstanding tradition of grand jury secrecy, Missouri Sunshine Laws allowed the prosecutor to release transcripts of the grand jury proceedings as well as a statement summarizing the evidence. Since the release of these transcripts, several scholars and commentators have expressed concern over the prosecutor’s presentation of the evidence.
Recently, a grand juror, who investigated the incident and participated in deciding whether to indict Officer Wilson, has sought to join the ongoing public discussion over the presentation of evidence to the grand jury. However, grand jury secrecy laws prohibit a grand juror from publicly disclosing anything relating to the investigation. To discuss these matters of public debate, “Grand Juror Doe” has filed a lawsuit seeking to declare Missouri’s grand jury secrecy laws unconstitutional because he claims, as applied, these laws allegedly violate his First Amendment rights.
As discussed below, Grand Juror Doe’s lawsuit presents a difficult question of balancing competing public policies. A district court ruling in this case must balance Grand Juror Doe’s First Amendment rights to discuss matters of public importance against Missouri’s diminished interests in preserving the secrecy of grand jury proceedings, and its strong interest in maintaining the secrecy of deliberations. Ultimately, this dilemma puts the district court in an unenviable position attempting to fashion the proper substantive holding that reflects the compelling interests of all parties involved.
I. Balancing Grand Juror Doe’s Asserted First Amendment Interests Against Governmental Interests Served by Grand Jury Secrecy
At the outset, it is important to note a critical distinction between grand jury proceedings and grand jury deliberations. Grand jury “proceedings” involve the witness testimony, documents, and exhibits received by the grand jury during its investigation. During grand jury proceedings, the only people who may be present are the attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter. Meanwhile, “deliberations” refers to the grand jurors’ discussions of the evidence presented and votes cast in rendering the jury’s decision. During deliberations and voting, no individuals other than the grand jurors may be present.
The publication of information relating to alleged governmental misconduct has traditionally been recognized as being at the core of the First Amendment. Grand Juror Doe’s complaint alleges that he wishes to publish information critical of a governmental actor—namely to criticize the prosecutor’s presentation of the evidence to the grand jury. Grand Juror Doe’s exercise of this important First Amendment right, according to the complaint, is chilled by the threat of prosecution under Missouri’s grand jury secrecy laws.
While political speech lies near its core, the First Amendment is not absolute. Grand jury secrecy has operated as a traditional abridgement of speech dating back over 800 years. In fact, the Supreme Court has upheld grand jury secrecy as a valid restriction on First Amendment rights. However, the Grand Jury is not “some talisman that dissolves all constitutional protections.”
Although the Supreme Court has never directly addressed the extent to which grand jurors may exercise First Amendment rights, it has established a general framework for how these types of disputes should be resolved. When faced with a challenge to grand jury secrecy relating to witnesses, the Supreme Court has determined that a court “must  balance asserted First Amendment rights against [the state’s] interests in preserving the confidentiality of its grand jury proceedings.” Accordingly, Grand Juror Doe’s First Amendment rights must be weighed against Missouri’s interests in preserving the confidentiality of its grand jury proceedings.
The Ferguson grand jury situation presents a unique scenario that alters the normal balance of governmental interests in grand jury secrecy. Under normal circumstances, when a grand jury decides not to indict, the state has strong public policies in favor of keeping both grand jury proceedings and deliberations confidential. Secrecy of the proceedings allows the grand jury to serve as a “bulwark of liberty” and protect citizens from oppressive prosecutions or false accusations.
However, when the grand jury decides to return an indictment, the justifications for grand jury secrecy are often diminished because subsequent proceedings are matters of public record. Like the publicity that follows a grand jury indictment, the prosecutor in this case publicly disclosed the testimony of witnesses appearing before the grand jury. Although this diminishes many public policies relating to grand jury secrecy, Missouri still has a strong public policy in favor of insuring the continued secrecy of grand jury deliberations.
Grand Juror Doe’s First Amendment Rights Outweigh Missouri’s Interests in Preserving Secrecy of Grand Jury Proceedings
Supporting Grand Juror Doe’s position is the fact that the Missouri prosecutor chose to release the transcripts of the grand jury proceedings. Because the Missouri prosecutor exercised the option to release the transcripts of the grand jury proceedings, Grand Juror Doe should have the ability to discuss the evidence contained in those transcripts because the witness testimony is now public knowledge. Enforcing grand jury secrecy against a grand juror while a prosecutor is making public comments regarding the proceedings effectively makes the 12 grand jurors the only citizens that are not free to take part in a debate on a matter of public importance. Such a restriction on First Amendment rights should not be tolerated.
Justice Scalia has cautioned against allowing grand jurors to respond to public criticism after grand jury proceedings. In his concurring opinion in Butterworth v. Smith, Justice Scalia warned that allowing grand jurors to react to public criticism may subject “grand jurors to a degree of press attention and public prominence that might in the long run deter citizens from fearless performance of their grand jury service.” While this argument is valid, basic principles of equity militate toward allowing Grand Juror Doe to speak about matters that are already public record. The lawful, public release of grand jury proceedings should open the door to Grand Juror Doe exercising his First Amendment rights to comment on matters of public importance.
Missouri’s Interests in Preserving Secrecy of Grand Jury Deliberations Outweigh Grand Juror Doe’s First Amendment Rights
On the other hand, although the right to discuss matters of public importance remains strong, Missouri’s interest in preserving the confidentiality of grand jury deliberations outweighs Grand Juror Doe’s First Amendment rights. When participants in a discussion expect the public dissemination of their remarks, they “may well temper candor with a concern for appearances . . . to the detriment of the decision-making process.”
One can argue in favor of allowing open discussion of grand jury deliberations by analogizing to petit juries. According to this line of reasoning, because petit jurors can be interviewed by the press following the verdict, so too should grand jurors be available for interviews. With public access to petit jurors who have greater power to assess liability, determine damages, or convict defendants, some argue it follows that there should be public access to grand jurors who hold lesser power to investigate or indict. This argument is persuasive here, where the prosecutor has made the transcripts of witness testimony public, which is functionally similar to the trial setting.
However, important distinctions remain between a petit jury and a grand jury. The most important distinction is that jeopardy attaches to the petit jury. For petit juries, jeopardy attaches early in the process—when a petit jury is sworn. On the other hand, with grand juries a new prosecution effort can begin should the grand jury decide not to indict. Society has a greater interest in ensuring a fair outcome and understanding the deliberative processes of a jury that has the final say on guilt or innocence than it does in a jury that decides whether to indict. Allowing grand jurors to freely discuss whether to indict insures that grand jurors are free to exercise discretion in order to prevent oppression by an overzealous prosecutor.
There are also important distinctions related to the source of public commentary. The Missouri prosecutor’s public statements are based off his own impressions of the witnesses’ demeanor and other evidence presented to the grand jury. A grand juror, on the other hand, “observes the testimony of all witnesses and participates directly in the process of determining whether an indictment should be issued. A juror, therefore, is in a position to disclose information that arguably could inhibit the deliberative process.”
Balancing Grand Juror Doe’s interest in publicly discussing deliberations against Missouri’s interest in maintaining the institutional integrity of grand jury deliberations weighs heavily in favor of maintaining grand jury secrecy. If Grand Juror Doe was able to discuss what occurred during the deliberations or the vote of the grand jury, then future grand jurors may not vote his or her conscience due to a belief that he or she is the only one with a particular opinion. Also, the grand juror may not voice his or her dissenting opinions for fear of public retribution if an opinion is disclosed.
A juror failing to speak his mind due to fear or timidity is a potential situation facing every grand jury panel, and later disclosure of the deliberations may influence future grand jurors to suppress their words or actions out of fear of publicity, rather than personality. This would undermine the grand jury’s historical freedom as a bulwark of government oppression. It is for these reasons that “not even the most radical scholars” have argued for allowing grand jury deliberations to become public.
II. How the Court Should Rule
The conflicting results from balancing Grand Juror Doe’s First Amendment rights against Missouri’s continued application of its grand jury secrecy laws creates a difficult question of how to provide appropriate relief. Among others, four options come to mind.
The first option would be to uphold the grand jury secrecy laws altogether. The benefits of this approach would be judicial efficiency of deciding the question only once, while also maintaining the longstanding tradition of grand jury secrecy of deliberations. The drawback to this approach is that it inhibits the political accountability of public officials, which the First Amendment strives to protect. The problem would be especially acute here where the effect of keeping grand jurors—citizens who may be potentially critical of a public official acting in his official capacity—muzzled from speaking out about matters of public debate, while sanctioning the prosecutor’s narrative of events.
Second, the district court could declare the entire grand jury secrecy scheme unconstitutional in the context of speech relating to both grand jury proceedings and deliberations. Similar to Option #1, this solution holds the benefit of judicial efficiency because the court would be required to decide the question once. This option would also allow Grand Juror Doe to engage in political discussions about the prosecutor’s role in presenting evidence to the grand jury when a police officer is under investigation. However, as discussed above, allowing the grand juror to discuss the deliberations would inhibit the free flow of ideas while in deliberations.
Third, the district court could declare the grand jury secrecy laws as applied to Grand Juror Doe’s discussion of those matters that are already public knowledge unconstitutional, while upholding the grand jury secrecy laws as applied to discussions that may reveal the grand jury’s deliberations or vote. This third option would allow Grand Juror Doe to speak freely about the grand jury proceedings but would subject Grand Juror Doe to criminal sanctions for contempt of court should he or she reveal grand jury deliberations or the vote.
This option has the benefit of maintaining the appropriate balance of First Amendment rights versus Missouri’s interests. It would allow those 12 grand jurors to speak freely about matters of public concern, which rectifies the inequity of prohibiting only 12 people from discussing witness testimony that is publicly available. Also, this option would uphold the policy of protecting the institution of the grand jury by not revealing deliberations.
However, this option, although great in theory, would be practically untenable. More judicial resources would become tied up reviewing every public interview the grand juror gave in order to decide whether a statement reveals the deliberations of the grand jury.
The problem with allowing the grand juror to speak about his impressions of the witness testimony is that by virtue of his position as a grand juror on the case, his statements may implicitly reveal the deliberations or votes of the grand jury.
For example, in the complaint, Grand Juror Doe states that he or she wishes to correct an inaccurate public perception that there was no support for any charges. If Grand Juror Doe publicly said, “Contrary to news reports and the prosecutor’s statements, several of us found there was strong evidence in the record to indict Officer Wilson,” would that implicitly reveal the deliberations? Would emphasis on the word “several” be sufficient to convey that there was a majority of the grand jury that was in favor of returning an indictment? If so, the statement would clearly be revealing the votes and deliberations of the grand jurors, which undermines the institution of the grand jury.
Option #4—A Hybrid Option
A fourth, hybrid option, would be an extension of Option #3. The court could declare unconstitutional the grand jury secrecy laws as applied to Grand Juror Doe’s discussion of those matters that are already public knowledge, while upholding the grand jury secrecy laws as applied to discussions that may reveal the grand jury’s deliberations or vote. Additionally, however, the court would allow the grand juror to submit a comprehensive statement for the district court judge to review in camera. The judge should redact only those statements that can be fairly said to reveal the grand jury’s deliberations and votes. While this option is effectively a form of prior restraint, which is disfavored, the unique circumstances of this case justify its use.
This hybrid option benefits from the judicial efficiency in Options #1 and #2 in that it would require the district court to only review the statement one time.
This option strikes an appropriate balance between Grand Juror Doe’s First Amendment rights, Missouri’s compelling interest in the secrecy of grand jury deliberations, and efficient use of judicial resources. Grand Juror Doe would be able to engage in political speech critical of government actors, which lies at the core of the First Amendment, while also protecting the free flow of ideas during grand jury deliberations.
Grand Juror Doe asserts a strong First Amendment interest in discussing matters of public importance—namely the role a prosecutor plays when presenting evidence of alleged police misconduct. The recent grand jury decision not to indict Officer Darren Wilson has created a public awareness of grand jury proceedings that may make Grand Juror Doe’s opinion especially relevant.
Against this interest, Missouri has a strong public policy interest in preserving the sanctity of grand jury deliberations. This public policy would be severely undermined should Grand Juror Doe be permitted to discuss the deliberations or votes of the grand jurors.
These two closely related forms of speech, one which should be permitted and one which crosses the line, creates at least four options a court may consider when fashioning a remedy for this case.
Ultimately, the district court ruling on this case must strike a balance between judicial efficiency, while also upholding the balance between Grand Juror Doe’s First Amendment rights to discuss matters of public importance against Missouri’s diminished interests in preserving the secrecy of grand jury proceedings.
 What Happened in Ferguson?, NYTimes.com, http://www.nytimes.com/interactive/2014/08/13/us/ferguson-missouri-town-under-siege-after-police-shooting.html?_r=1, archived at http://perma.cc/CZ6E-2KEH (last visited Feb. 25, 2015).
 Id. See also David Zucchino, Prosecutor’s Grand Jury Strategy In Ferguson Case Adds To Controversy, LaTimes.com, (Nov. 25, 2014, 8:49 PM) http://www.latimes.com/nation/la-na-ferguson-da-analysis-20141126-story.html, archived at http://perma.cc/AW6H-6L6V.
 Richard M. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 456 (1965); J. Robert Brown, Jr., The Witness and Grand Jury Secrecy, 11 Am. J. Crim L. 169, 170–72 (1983).
 Complaint for Prospective Relief at ¶ 31, Grand Juror Doe v. McCulloch, No. 4:15-cv-00006 (E.D. Mo. Jan. 5, 2015), available at http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1-5-15.pdf, archived at http://perma.cc/ZP9M-JRNJ.
 Zucchino, supra note 2; What Happened in Ferguson?, supra note 1.
 Complaint for Prospective Relief at ¶ 34, Grand Juror Doe v. McCulloch, No. 4:15-cv-00006 (E.D. Mo. Jan. 5, 2015), available at http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1
5-15.pdf, archived at http://perma.cc/ZP9M-JRNJ.
 Grand jurors take an oath to keep secret the testimony of the witnesses before them, as well as the deliberations and votes of the grand jury. Mo. Rev. Stat. Ann. § 540.320, 310 (2015); Fed. R. Crim. P. 6(e)(2). A grand juror who discusses these proceedings or deliberations is subject to criminal prosecution for contempt of court. Mo. Rev. Stat. Ann. § 540.320, 310, 120 (2015); Fed. R. Crim. P. 6(e)(7).
 Complaint for Prospective Relief at ¶ 1, Grand Juror Doe v. McCulloch, No. 4:15-cv-00006 (E.D. Mo. Jan. 5, 2015), available at http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1-5-15.pdf, archived at http://perma.cc/ZP9M-JRNJ.
 Calkins, supra note 3, at 456.
 Mo. Rev. Stat. Ann. §§ 540.105, 540.130 (Westlaw 2015); Fed R. Crim. P. 6(d)(1).
 See Step 4: Jury Deliberations, Your Missouri Courts, http://www.courts.mo.gov/page.jsp?id=1015, archived at http://perma.cc/62UJ-CE89 (last visited February 25, 2015).
 Mo. Rev. Stat. Ann. § 540.140 (Westlaw 2015); Fed R. Crim. P. 6(d)(2).
 See Butterworth v. Smith, 494 U.S. 624, 632 (1990).
 Complaint for Prospective Relief at ¶ 34, Grand Juror Doe v. McCulloch, No. 4:15-cv-00006 (E.D. Mo. Jan. 5, 2015), available at http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1-5-15.pdf, archived at http://perma.cc/ZP9M-JRNJ.
 Id. at ¶ 40.
 Calkins, supra note 3, at 456; Brown, supra note 3, at 170–72.
 Tim A. Baker, Grand Jury Secrecy v. The First Amendment: A Case For Press Interviews Of Grand Jurors, 23 Val. U. L. Rev. 559, 577 (1989)
 See Butterworth, 494 U.S. at 630.
 Traditionally, the governmental interests asserted in favor of continuing the confidentiality of grand jury proceedings are:
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
Douglas Oil Co. v. Petrol Stops N.W., 441 U.S. 211, 219 n.10 (1979) (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 681–82 n.6 (1958)).
 Baker, supra note 17, at 577 (“Openness gives the assurance that proceedings are conducted fairly to all concerned, and it discourages perjury, misconduct of participants, and decisions based on secret bias or partiality.”).
 See Butterworth, 494 U.S. at 630–33 (recognizing that when a grand jury returns an indictment, the justifications for maintaining the secrecy of grand jury proceedings are diminished because the accused has certain pretrial rights to obtain witness lists and copies of testimony).
 What Happened in Ferguson?, supra note 1.
 See supra note 21. Many of those governmental interests in grand jury secrecy are diminished when a prosecutor publicly reveals witness testimony. As to the first governmental interest, preventing escape of a potential defendant, the Supreme Court has recognized that when an investigation results in a No True Bill, there is no longer a need to keep information from the targeted individual in order to prevent his escape because he will have been exonerated. See Butterworth, 494 U.S. at 633. Second, there is no need to prevent the subornation of perjury of witnesses appearing at a later trial. United States v. Navarro-Vargas, 408 F.3d 1184, 1215 (9th Cir. 2005) (Hawkins, J., dissenting). See also United States v. Williams, 504 U.S. 36, 49 (1992). At any subsequent trial that may occur, a defendant has an opportunity to learn of the existence of a witness that the state may call at trial, as well that witness’ testimony before the grand jury. Id. Also, the state has at its disposal penalties for perjury and tampering with witnesses. Butterworth, 494 U.S. at 633. Third, the policy of encouraging free and untrammeled disclosures by persons having information related to commission of crimes has already seriously been undermined by the public dissemination of the grand jury transcripts in Officer Wilson’s case. Finally, Missouri’s grand jury secrecy laws have not protected the innocent accused from the disclosure of being under investigation. Soon after the shooting and during the grand jury’s investigation, the public knew Officer Wilson was under investigation for shooting Michael Brown. See What Happened in Ferguson?, supra note 1.
 The remaining policy justification for grand jury secrecy is to insure the utmost grand jury in its deliberations and prevent the importuning of grand jurors. This public policy remains of vital importance following the return of a No True Bill by the grand jury. See Calkins, supra note 3, at 459 (A citizen serving as a grand juror “must be assured that the law will not permit him to be subjected to the malice and consequent injury that might result from an accused neighbor’s knowledge that he advocated and voted for the latter’s indictment.”).
 What Happened in Ferguson?, supra note 1.
 But see Butterworth, 494 U.S. at 633 (distinguishing between the sources of information).
 Id. at 636–37. See also Calkins, supra note 3, at 458 (1965) (Grand jurors “should be free from the apprehension that their opinions and votes may subsequently be disclosed by compulsion.”).
 United States v. Nixon, 418 U.S. 683, 705 (1974).
 See Baker, supra note 17, at 567.
 United States v. Navarro-Vargas, 408 F.3d 1184, 1215 (9th Cir. 2005) (Hawkins, J., dissenting). See also United States v. Williams, 504 U.S. 36, 49 (1992)
 Navarro-Vargas, 408 F.3d at 1215.
 Calkins, supra note 3, at 458. Although grand juries initially were designed to augment the King’s power, eventually grand juries began to meet underneath a veil of secrecy. “Secrecy proved to be an effective means of reducing the influence of the King and [guaranteeing] the impartiality of the grand jury.” Brown, supra note 3, at 170.
 Brown, supra note 3, 187.
 See In re Monday Grand Jury Panel of Monmouth Cnty. Vicinage 9, 963 A.2d 388, 395 (N.J. Super. Ct. 2008).
 See Baker, supra note 17, at 563–64.
 Fred A. Bernstein, Note, Behind The Gray Door: Williams, Secrecy, And The Federal Grand Jury, 69 N.Y.U. L. Rev. 563, 578 n.89 (1994).
 See Butterworth v. Smith, 494 U.S. 624, 630 (1990).
 Complaint for Prospective Relief at ¶ 34, Grand Juror Doe v. McCulloch, No. 4:15-cv-00006 (E.D. Mo. Jan. 5, 2015), available at http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1-5-15.pdf, archived at http://perma.cc/ZP9M-JRNJ (“In Plaintiff’s view, the current information available about the grand jurors’ views is not entirely accurate—especially the implication that all grand jurors believed that there was no support for any charges.”).