United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-1436

___________________________ 

Grand Juror Doe

 Plaintiff - Appellant

v.

Wesley Jonell-Cleavon Bell,1 in his official capacity as Prosecuting Attorney for 

St. Louis County, Missouri

 Defendant - Appellee

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________ 

Submitted: March 12, 2020

 Filed: August 14, 2020

____________ 

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges. 

GRUENDER, Circuit Judge. 

1

Wesley J.C. Bell succeeded Robert P. McCulloch in his official capacity as 

the Prosecuting Attorney for St. Louis County, Missouri on January 1, 2019. 

Pursuant to Federal Rule of Civil Procedure 25(d), the district court substituted Bell 

for McCulloch as the named defendant, and the case comes to us with the above 

caption. 

____________
-2- 

Grand Juror Doe (“Doe”) appeals the district court’s2 dismissal of her action 

seeking both a declaration that the State of Missouri’s grand jury secrecy laws are 

an unconstitutional abridgement of free speech as applied to her and an injunction 

preventing their enforcement.

3

 For the reasons below, we affirm.

I.

On August 9, 2014, Darren Wilson, a former police officer with the City of 

Ferguson, Missouri, shot and killed Michael Brown. Following the shooting, St. 

Louis County Prosecuting Attorney Robert P. McCulloch announced that he 

intended to submit the matter to a grand jury for consideration. At the time, Doe 

was a grand juror serving in the circuit court for St. Louis County for a term 

originally scheduled to end on September 10, 2014. Following Brown’s death, 

Doe’s service was extended to January 2015, and the grand jury was tasked with 

investigating whether there was probable cause to believe Wilson committed a 

crime.

“In Missouri, grand jury proceedings are conducted in secret,” State ex rel. 

Roe v. Goldman, 471 S.W.3d 814, 817 (Mo. Ct. App. 2015), and the Wilson grand 

jury was no different. To impress upon Doe the significance of this confidentiality 

requirement, Missouri required Doe to take an oath of secrecy twice, once in May 

2014 and a second time in September 2014, swearing in relevant part that she would 

“truly keep secret” “the counsel of [her] state, [her] fellows and [her] own.” Mo. 

Rev. Stat. § 540.080. Missouri law both protects grand jurors in their oath and 

prohibits them from violating it. On the one hand, no one may force a juror to 

2

The Honorable Rodney W. Sippel, Chief Judge, United States District Court 

for the Eastern District of Missouri.

3

The district court granted Doe’s motion to proceed pseudonymously and 

thereafter used female pronouns in its orders. Consistent with the district court and 

our previous opinion in this matter, see Doe v. McCulloch, 835 F.3d 785, 786 n.1 

(8th Cir. 2016), we also use female pronouns throughout this opinion.
-3- 

disclose how she voted “on any question before [her]” or “what opinions were 

expressed by any juror in relation to any such question.” Mo. Rev. Stat. § 540.310. 

On the other hand, “no member of a grand jury” may “declare in what manner he or 

any other member of the grand jury voted,” id., and “[n]o 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,” id. § 540.320. A grand juror who unlawfully discloses evidence or names 

of witnesses “shall be deemed guilty of a class A misdemeanor.” Id. Missouri also 

prohibits witnesses from violating the grand jury’s secrecy. See id. §§ 540.110, 

540.120. 

On November 24, 2014, the Wilson grand jury returned a “no true bill,” and 

the jury was subsequently discharged. Immediately afterward, McCulloch held a 

press conference at which he delivered an oral statement and, in an unusual move, 

released some of the evidence and testimony presented to the grand jury, including

transcripts, reports, interviews, and forensic evidence. The documents were redacted 

to keep secret the identities of the grand jurors, witnesses, and other persons 

connected to the investigation. The documents did not include any information 

concerning the grand jury’s deliberations or any grand juror’s vote on any charge.

Six weeks later, Doe sued McCulloch in his official capacity under 42 U.S.C. 

§ 1983, seeking both declaratory and injunctive relief because, she claimed, sections 

540.080, 540.120, 540.310, and 540.320 of the Missouri Revised Statutes violate the 

Free Speech Clause of the First Amendment as applied to her.

4 In her complaint,

Doe alleged that she had not recounted her experience or expressed her views 

concerning the Wilson case on account of her fears that she will face criminal 

penalties or contempt charges. She asserted that McCulloch mischaracterized the 

views of the grand jurors collectively toward the evidence, the witnesses’ credibility, 

and the law, and as a result, she sought to correct the record. Doe also claimed that

4

We refer to the defendant as Missouri in the rest of this opinion because of 

the nature of Doe’s claim.
-4- 

she would like to speak about the experience of being a grand juror, including the 

discrepancies she noticed in the procedures utilized by McCulloch in the Wilson 

case compared to others. Doe did not express a desire to discuss publicly the Wilson 

matter completely independently of her role as a grand juror, but instead she sought

to pull back the curtain of the jury’s secrecy to discuss a wide array of previously 

confidential matters that go to the heart of the grand jury’s deliberations. 

The district court initially granted Missouri’s motion to dismiss under the 

abstention doctrine announced in Railroad Commission of Texas v. Pullman Co., 

312 U.S. 496 (1941). See Doe v. McCulloch, 106 F. Supp. 3d 1007, 1014 (E.D. Mo. 

2015). We vacated and remanded, holding that “the district court should not have 

dismissed the case outright, but rather should have stayed the case while the statelaw issues were decided by the Missouri state courts.” McCulloch, 835 F.3d at 786. 

While her federal appeal was pending, Doe pursued state-law claims in Missouri 

courts, all of which were dismissed in 2016. See Doe v. MuCulloch, No. 15SLCC01891, 2016 WL 9000971, at *1 (Mo. Cir. Ct. Dec. 13, 2016). The Missouri 

Court of Appeals affirmed the dismissal of Doe’s state-law claims in 2017. See Doe 

v. McCulloch, 542 S.W.3d 354, 367 (Mo. Ct. App. 2017). 

At the end of litigation in state court, the district court reopened this case. Doe 

v. McCulloch, No. 4:15 CV 6 RWS, 2018 WL 3725774, at *2 (E.D. Mo. June 26, 

2018). It then determined that Doe lacked standing to challenge section 540.120 

because the statute applies only to witnesses that appear before a grand jury and thus 

did not apply to Doe. Doe v. Bell, 367 F. Supp. 3d 966, 973 (E.D. Mo. 2019). The 

district court also held that Doe lacked standing to challenge sections 540.080 and 

540.310 because neither section provides for criminal penalties and thus were not 

enforceable by the prosecuting attorney but only by the appropriate Missouri circuit 

court, which was not a party to the action. As a result, the district court could not 

redress any injury that fairly could be traced to an action of a named defendant. Id. 

The court then granted Missouri’s motion to dismiss Doe’s federal constitutional 

claim concerning section 540.320, holding that Doe had failed to state a claim for 

which relief could be granted because the statute did not violate Doe’s First 
-5- 

Amendment free speech rights since it was narrowly tailored to serve a compelling 

governmental interest. See id. at 969, 978. Doe appeals.

II.

On appeal, Doe argues that section 540.320 of the Missouri Revised Statutes

is an unconstitutional abridgment of free speech as applied to her and thus that the 

district court erred in dismissing her challenge against this provision for failure to 

state a claim.

5

 Missouri responds that (1) the First Amendment’s Free Speech 

Clause does not afford Doe a right to speak about matters she learned of during her 

grand jury service; (2) even if the Free Speech Clause covers her proposed speech, 

Doe waived her rights when she swore an oath of secrecy; and (3) applying strict 

scrutiny, section 540.320 is narrowly tailored to achieve a compelling governmental 

interest.

We review de novo a district court’s grant of a motion to dismiss for failure 

to state a claim. Wong v. Minn. Dep’t of Human Servs., 820 F.3d 922, 927 (8th Cir. 

2016). Here, we need not settle whether Doe’s proposed speech is covered by the 

First Amendment or whether Doe waived her speech rights by swearing an oath to 

keep grand jury matters secret. Because Missouri’s grand jury secrecy laws survive 

even the most exacting scrutiny, Doe failed to state a claim for which relief can be 

granted. 

The First Amendment prohibits the enactment of laws “abridging the freedom 

of speech.” U.S. Const. amend. I. “The Fourteenth Amendment makes th[is] 

prohibition applicable to the States.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 442 

(2015). The Supreme Court has previously explained that though states traditionally 

5

Doe does not appeal the district court’s determination that she lacks standing 

to challenge sections 540.080, 540.120, and 540.310 of the Missouri Revised 

Statutes. Thus, we only address the constitutionality of section 540.320. See 

Constanza v. Holder, 647 F.3d 749, 753 n.2 (8th Cir. 2011) (per curiam) (declining 

to address an argument abandoned by the appellant). 
-6- 

have had broad powers to limit grand jury speech, grand juries “are expected to

operate within the limits of the First Amendment, as well as the other provisions of 

the Constitution.” Butterworth v. Smith, 494 U.S. 624, 630 (1990) (internal 

quotation marks omitted). This is because “‘a major purpose’” of the First 

Amendment is “‘to protect the free discussion of governmental affairs,’” including 

the “operations of the courts.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 

838-39 (1978) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Accordingly, 

a state’s argument that a law advances the functioning of the grand jury is not “some 

talisman that dissolves all constitutional protections” but must instead be justified 

by reference to the dictates of the Constitution. See United States v. Dionisio, 410 

U.S. 1, 11 (1973).

The Free Speech Clause prohibits any governmental body from “restrict[ing] 

expression because of its message, its ideas, its subject matter, or its content.” Reed 

v. Town of Gilbert, 576 U.S. 155, 163 (2015). “Content-based laws—those that 

target speech based on its communicative content—are presumptively 

unconstitutional and may be justified only if the government proves that they are 

narrowly tailored to serve compelling state interests.” Id. A law is content based if 

it requires “enforcement authorities to examine the content of the message that is 

conveyed to determine whether a violation has occurred.” McCullen v. Coakley, 573 

U.S. 464, 479 (2014) (internal quotation marks omitted). Thus, in evaluating how 

closely to scrutinize a state restriction of speech, a court must determine whether a 

statute “draws distinctions based on the message a speaker conveys.” Reed, 576 

U.S. at 163.

The district court held that section 540.320 imposes a content-based

restriction because it regulates the specific communicative content of speech, and 

we assume that the district court’s determination is correct.

6

 Bell, 367 F. Supp. 3d 

6

Missouri’s restrictions on Doe’s speech may not be subject to strict scrutiny. 

At the time of the First Amendment’s ratification, the grand jury had operated in 

secret both in England and the colonies for centuries. See Butterworth, 494 U.S. at 
-7- 

at 975. Because Doe may not “disclose any evidence given before the grand jury” 

or the “name of any witness,” Mo. Rev. Stat. § 540.320, the district court reasoned 

that the prosecuting attorney would have to examine the content of Doe’s speech to 

find a violation of section 540.320, id.; see also In re Subpoena 2018R00776, 947 

F.3d 148, 155 (3d Cir. 2020) (holding that a grand jury subpoena’s non-disclosure 

order constituted a content-based regulation subject to strict scrutiny because the 

order drew “distinctions based on the message”). Accordingly, we must determine 

whether section 540.320 is narrowly tailored to achieve a compelling governmental 

interest as applied to the speech in which Doe avers she wants to engage. See Reed, 

576 U.S. at 163. We conclude that it is. 

A.

We begin with a review of Missouri’s purported interest in grand jury secrecy. 

As we have previously explained, “strict scrutiny is best described as an end-andmeans test,” and as a result, we must first have a “clear understanding of what the 

state’s interest may be” before deciding “whether the purported interest is indeed a 

compelling state interest.” Republican Party of Minn. v. White, 416 F.3d 738, 750 

(8th Cir. 2005) (en banc) (brackets and internal quotation marks omitted). 

629. As a result, the founding generation incorporated the tradition of secrecy 

surrounding grand jury proceedings as a vital means of implementing its function by 

ensuring its impartiality. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 

211, 218-19, 218 n.9 (1979). This history sits uncomfortably with the notion that 

speech restrictions in the service of protecting grand jury secrecy are “presumptively 

invalid.” See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992); Goodman v. 

United States, 108 F.2d 516, 520 (9th Cir. 1939) (“It has never been supposed that 

grand jurors are deprived of the constitutional right of free speech through the oath 

of secrecy which they take . . . .”). Further, in Butterworth, the Supreme Court did 

not apply strict scrutiny when evaluating a state secrecy requirement concerning the 

testimony of grand jury witnesses, 494 U.S. at 632, even though the Court introduced 

the distinction between laws that are content based and laws that are content neutral 

and applied strict scrutiny to a content-based law as early as its decision in Police 

Department of Chicago v. Mosley, 408 U.S. 92, 100-01 (1972). 
-8- 

The United States Constitution “presumes a role for the grand jury” in 

American criminal procedure through the Fifth Amendment, United States v. 

Navarro-Vargas, 408 F.3d 1184, 1189 (9th Cir. 2005) (en banc), and the Supreme 

Court has previously indicated that “[t]here is every reason to believe” the American

grand jury “was intended to operate substantially like its English progenitor,” 

Costello v. United States, 350 U.S. 359, 362 (1956); Wheaton v. Peters, 33 U.S. (8 

Pet.) 591, 658-59 (1834) (explaining that early American legal customs arose from 

the English common law). As a result, we believe the manner in which grand jury 

secrecy implicates the First Amendment, ratified at the same time as the Fifth, “must 

be linked to the grand jury’s origins.” Cf. Navarro-Vargas, 480 F.3d at 1189.

The grand jury is an ancient institution with roots stretching as deep as the 

twelfth century. See Navarro-Vargas, 408 F.3d at 1190. This early version of the 

grand jury was decidedly a tool of the English Crown. See Butterworth, 494 U.S. at 

629. It had two main functions—to ferret out criminals to the Crown’s officials and 

to “extend the central government throughout England”—and the Crown 

successfully controlled the grand jury by fining its members if “they failed to indict 

any suspect or even if they failed to indict an acceptable number of suspects.” Mark 

Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its 

Secrecy, and Its Process, 24 Fla. St. U.L. Rev. 1, 5-6 (1996) (footnote omitted). In 

time, the grand jury gained a degree of independence, and by the fourteenth century, 

the “graunde inquest” 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.” See

George J. Edwards, Jr., The Grand Jury: Considered from an Historical, Political 

and Legal Standpoint, and the Law and Practice Relating Thereto 26-28 (Cosimo 

2009) (1906).

At common law, the violation of grand jury secrecy was a crime, see 4 

William Blackstone, Commentaries *126, and jurors defended their right to secrecy 

as essential to the grand jury’s independence, see Sara Sun Beale et al., Grand Jury 

Law & Practice § 5.2 (2019). For instance, in 1681, King Charles II sought to 
-9- 

convict the Earl of Shaftesbury of high treason because Shaftesbury opposed the 

Crown’s effort to reestablish the Catholic Church in England. See Douglas P. 

Currier, Note, The Exercise of Supervisory Powers to Dismiss a Grand Jury 

Indictment—a Basis for Curbing Prosecutorial Misconduct, 45 Ohio St. L.J. 1077, 

1078 (1984). A grand jury was assembled at the Old Bailey in London and a bill of 

indictment was placed before it. See Earl of Shaftesbury’s Trial, 8 How. St. Tr. 759, 

771-74 (1681). The Crown moved to hear the evidence in open court, but the grand 

jury refused, explaining in detail the justifications for secrecy and calling upon the 

oath they had sworn to “keep secret” the evidence presented before them, as “hath 

been the constant practice of our ancestors and predecessors.” Id. at 771-72; see also

In re Grand Jury Subpoenas, 454 F.3d 511, 521 (6th Cir. 2006) (discussing same);

Beale, Grand Jury Law & Practice § 5.2 (same). One grand juror observed that 

“public examination of witnesses could cause suspects to flee; it could prejudice the 

state by providing the defendant with foreknowledge of all the state’s evidence . . . , 

and it could impair the ability and willingness of the jurors to examine the evidence 

comprehensively, and ‘without favor or affection.’” See Beale, Grand Jury Law & 

Practice § 5.2 (quoting 8 How. St. Tr. at 771-74); see also Navarro-Vargas, 408 

F.3d at 1191 (describing the trial of the Earl of Shaftesbury as the moment that 

“established grand jury secrecy”). 

When the institution of the grand jury crossed from England to the American 

colonies, the rule of grand jury secrecy came with it. See Costello, 350 U.S. at 362. 

The Framers later included the Grand Jury Clause in the Fifth Amendment, 

“ma[king] grand jury secrecy an implicit part of American criminal procedure.” 

Kadish, Behind the Locked Door, at 16; see Douglas Oil Co., 441 U.S. at 218 n.9

(“[G]rand jury secrecy was imported into our federal common law and is an integral 

part of our criminal justice system.”); Joseph L. Story, 3 Commentaries on the 

Constitution of the United States § 1778 (1833) (noting that the grand jury members 

“sit in secret, and examine the evidence laid before them by themselves”). Over 

time, courts adopted reasons similar to those expressed by the grand juror at the trial 

of the Earl of Shaftesbury to justify the grand jury’s secrecy. See Dionisio, 410 U.S. 

at 17 n.15 (“[T]he institution was adopted in this country, and is continued from 
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considerations similar to those which give to it its chief value in England . . . .”). For 

example, in 1917, a court explained that secrecy is essential because publicity could 

undermine justice by “warning offenders to escape, to destroy evidence, or to tamper 

with witnesses.” United States v. Providence Tribune Co., 241 F. 524, 526 (D.R.I. 

1917). The court also explained that secrecy protected the reputations of the 

unindicted accused and encouraged the candor of witnesses. Id. 

These justifications have now been widely accepted in American courts as 

validating the rule of grand jury secrecy. See, e.g., In re Subpoena 2018R00776, 

947 F.3d at 157; In re Grand Jury Process, Doe, 814 F.3d 906, 909 (8th Cir. 2015);

Illinois v. F.E. Moran, Inc., 740 F.2d 533, 539 (7th Cir. 1984) (Posner, J.) (“[T]he 

view that grand jury secrecy is very much worth preserving even after the grand jury 

has been discharged . . . is far too well established . . . to be questioned by us.”); 

United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954) (delineating these 

justifications as the basis for grand jury secrecy). The Supreme Court has repeatedly

ratified them. See, e.g., Douglas Oil Co., 441 U.S. at 218; United States v. Procter 

& Gamble Co., 356 U.S. 677, 681 & n.6 (1958). 

Indeed, the Court has recognized that “several distinct interests [are] served

by safeguarding the confidentiality of grand jury proceedings,” explaining that 

if preindictment proceedings were made public, many prospective 

witnesses would be hesitant to come forward voluntarily, knowing that 

those against whom they testify would be aware of that testimony. 

Moreover, 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. 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. Finally, by preserving the secrecy of 

the proceedings, we assure that persons who are accused but exonerated 

by the grand jury will not be held up to public ridicule.

Douglas Oil Co., 441 U.S. at 218-19. 
-11- 

Other jurists have concluded that the secrecy of who makes up the grand jury 

also serves to legitimate its decisions and to shield grand jurors from intimidation 

and harassment both during and after their service, ensuring their deliberation is not 

driven by concerns beyond the scope of the charged crime and the presented 

evidence. See Butterworth, 494 U.S. at 636-37 (Scalia, J., concurring); United States 

v. Amazon Indus. Chem. Corp., 55 F.2d 254, 261 (D. Md. 1931); Goldman, 471 

S.W.3d at 817. It is thus no surprise that Missouri also recognizes these traditional 

interests in grand jury secrecy. See McCulloch, 2016 WL 9000971, at *4 (stating 

that “grand jury secrecy is intended to protect the public welfare” because it 

“protect[s] the jurors themselves,” “promote[s] a complete freedom of disclosure,” 

“prevent[s] the escape of a person indicted before he may be arrested,” and 

“protect[s] the reputations of persons against whom no indictment may be found”); 

see also Mannon v. Frick, 295 S.W.2d 158, 162 (Mo. 1956) (reasoning similarly). 

We have previously explained that what constitutes a compelling interest “is 

not easily defined,” but we have recognized that a state advances a compelling 

interest when a policy is necessary for “upholding the administration of justice.” 

White, 416 F.3d at 749-50, 750 n.5. This is because the administration of justice is 

an “interest of the highest order” and an “overriding state interest.” See id. at 749 

(brackets omitted); see also Williams-Yulee, 575 U.S. at 437-38, 444 (holding that 

Florida had a compelling interest in regulating how judicial candidates solicited 

campaign funds because of the state’s overriding interest in “assur[ing] its people 

that judges will apply the law without fear or favor”). 

The Supreme Court has frequently observed that secrecy ensures the grand 

jury fulfills its “dual function” as both a sword and shield of American criminal law, 

“ferret[ing] out crimes deserving of prosecution” and “screen[ing] out charges not 

warranting prosecution.” See, e.g., United States v. Sells Eng’g, Inc, 463 U.S. 418,

424 (1983) (“Grand jury secrecy, then, is as important for the protection of the 

innocent as for the pursuit of the guilty.” (internal quotation marks omitted)). In 

fact, “the proper functioning of our grand jury system depends upon the secrecy of 
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grand jury proceedings” so much so that the Court has referred to its confidentiality 

as “vital.” Rehberg v. Paulk, 566 U.S. 356, 374 (2012).

We think it thus beyond dispute that secrecy is an integral component to a 

functioning grand jury system and that once a state chooses to adopt it as a 

mechanism for screening indictments, the grand jury’s secrecy becomes an interest 

of the highest order because it is necessary for “upholding the administration of 

justice.” See White, 416 F.3d at 749-50 & n.5; Butterworth, 494 U.S. at 629-30; In 

re Grand Jury Subpoenas, 454 F.3d at 521 (“Grand jury secrecy is thus a strong 

command, and federal courts must recognize that, for the system to function 

properly, grand jury proceedings must be conducted essentially in a vacuum, free 

from outside influence and sufficiently enveloped so that grand jury information is 

not disclosed to the general public.” (internal quotation marks omitted)). As a result, 

Missouri has demonstrated section 540.320 advances a compelling governmental 

interest. 

B. 

Doe asserts that even if grand jury secrecy ordinarily constitutes a compelling 

interest, section 540.320’s requirement that she not disclose evidence or witness 

names is no longer narrowly tailored to advance that interest because McCulloch

took the “extraordinary” step of releasing evidence and other information concerning 

the proceedings of the grand jury. Doe contends that the volume of information that 

is now public militates in favor of permitting her to speak broadly on issues that have 

not previously been disclosed. We disagree. 

For a statute to be narrowly tailored, it must be the least restrictive means of 

serving the government’s interest. See McCullen, 573 U.S. at 486. “A narrowly 

tailored regulation is one that actually advances the state’s interest,” “does not sweep 

too broadly,” “does not leave significant influences bearing on the interest 

unregulated,” and “could be replaced by no other regulation that could advance the 

interest as well with less infringement of speech.” White, 416 F.3d at 752. “This 
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narrow tailoring requirement means . . . that the factual situation demonstrates a real 

need for the government to act to protect its interests.” Willson v. City of Bel-Nor, 

924 F.3d 995, 1001 (8th Cir. 2019). 

First, we think it self-evident that section 540.320 continues to “actually 

advance[] the state’s interest.” See White, 416 F.3d at 752. Section 540.320 protects 

the identity of witnesses and keeps confidential the specific information they 

provided to the grand jury. See Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 566 

n.11 (1983). McCulloch did not release this information, and it simply is not the 

case that the state forfeits its interest in maintaining the secrecy of all grand jury 

materials and proceedings merely because it chooses to disclose some information. 

See United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994) (denying the release 

of grand jury minutes even after the defendant was indicted and prosecuted). 

Second, Missouri maintains an interest in protecting the secrecy of the grand 

jury’s deliberative process. See In re Grand Jury Proceedings Relative to Perl, 838 

F.2d 304, 306 (8th Cir. 1988) (noting that the rule of secrecy is designed “to preserve 

the freedom and integrity of the deliberative process”). McCulloch did not reveal 

any information regarding the grand jury’s membership, deliberations, or voting, and 

we believe Missouri maintains an interest in keeping this information—including 

Doe’s own views—secret. See United States v. Nixon, 418 U.S. 683, 705 (1974)

(explaining that 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 decisionmaking process”). Confidentiality “helps to assure . . . 

that grand jurors will not be intimidated in the execution of their duties by the fear 

of unjustified public criticism.” See Butterworth, 494 U.S. at 636-37 (Scalia, J., 

concurring). And it does not suffice to say that grand jurors could respond to that 

criticism because permitting them to respond “would have its own adverse effects, 

including the subjection of 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.” Id.
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Third, section 540.320 protects the unindicted accused from public ridicule or 

other opprobrium. See Douglas Oil Co., 441 U.S. at 218-19. To be sure, in a case 

where the name of the accused and the facts are widely known, this concern is of 

less importance. But the fact that much of the evidence is public does not lessen 

Missouri’s 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 impugn the 

innocence of the accused with charges they could not agree to collectively. See id.

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 credibility of witnesses as well as the relevant evidence. Thus, the 

fact that much of the evidence is publicly available does not diminish Missouri’s 

concern for protecting the accused’s reputational interest, having subjected him to 

the grand jury process in the first place. See id. at 222 (“The interests in grand jury 

secrecy, although reduced, are not eliminated merely because the grand jury has 

ended its activities.”). 

Next, we do not believe the challenged provision sweeps too broadly. See In 

re April 1956 Term Grand Jury, 239 F.2d 263, 272 (7th Cir. 1956) (concluding that 

“the safeguard of secrecy, in the interest of the public, continues even after the grand 

jury has completed its efforts”). Doe does not claim that she is prevented from 

discussing anything concerning the Wilson matter other than the knowledge she 

gained of the evidence, witness identities, and deliberations in the context of her role 

as a grand juror. Section 540.320’s requirement that Doe not disclose matters she 

learned as part of her grand jury service is a limitation on Doe’s speech that is

“narrowly drawn” to protect the interests highlighted above. See United States v. 

Anderson, 759 F.3d 891, 895 (8th Cir. 2014).

Neither do we believe that section 540.320 is underinclusive; that is, it does 

not permit “vast swaths” of speech that undermine the state’s compelling interest 

such that the statute cannot be said to “advance its stated purpose.” See WilliamsYulee, 575 U.S. at 448-49. “It is always somewhat counterintuitive to argue that a 
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law violates the First Amendment by abridging too little speech,” but 

“underinclusiveness can raise doubts about whether the government is in fact 

pursuing the interest it invokes, rather than disfavoring a particular speaker or 

viewpoint.” Id. at 448 (internal quotation marks omitted). “Underinclusiveness can 

also reveal that a law does not actually advance a compelling interest.” Id. at 449. 

Here, we see “no fatal underinclusivity concerns.” See id. No information 

concerning any grand juror’s view of the evidence or witnesses’ credibility has been 

released, and their votes remain confidential. Indeed, the grand jurors’ deliberations 

were not transcribed at all, and as a result, could only become public if a grand juror 

chose to violate her oath. 

Finally, we conclude there is no more limited means by which Missouri can 

advance its interest in preserving the functioning of the grand jury system. If Doe 

were to speak on the quality of the evidence, the credibility of witnesses, or the 

deliberations of fellow jurors concerning the same, she would necessarily undermine 

the functioning of the grand jury. Witnesses 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. See Butterworth, 494 U.S. at 636-37 

(Scalia, J., concurring); Douglas Oil Co., 441 U.S. at 222 (explaining that in 

evaluating grand jury disclosures, “courts must consider not only the immediate 

effects upon a particular grand jury, but also the possible effect upon the functioning 

of future grand juries”). 

The Supreme Court’s holding in Butterworth is not to the contrary. 494 U.S. 

624. There, the Court held that a witness who testified before a Florida grand jury 

could not be prohibited from disclosing the substance of his testimony after the term 

of the grand jury had ended. 494 U.S. at 626. But the Court purposely did not 

address the right of a witness to discuss his “experience” before the grand jury. Id. 

at 629 n.2. It instead limited its holding to allow the witness to “divulge information 
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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. This case thus varies from

Butterworth in a critical way: Doe proposes to divulge information that she obtained 

as a direct result of her participation in the Wilson grand jury. See Seattle Times 

Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (holding that a protective order prohibiting 

a newspaper from publishing information which it had obtained through discovery 

procedures did not violate the First Amendment). 

Accordingly, we hold that, as applied to Doe, section 540.320 of the Missouri 

Revised Statutes is narrowly tailored to serve Missouri’s compelling interest in 

preserving the functioning of its grand jury system. As a result, it is the “rare case”

of a speech restriction that survives strict scrutiny review. See Burson v. Freeman, 

504 U.S. 191, 211 (1992) (plurality op.) (upholding under strict scrutiny review a 

content-based law that required “solicitors to stand 100 feet from the entrances to 

polling places” because “the right to cast a ballot in an election free from the taint of 

intimidation and fraud” trumped other free speech rights); cf. Adarand Constructors, 

Inc. v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish to dispel the notion that strict 

scrutiny is ‘strict in theory, but fatal in fact.’”).7

7

Doe implores us to consider federal court interpretations of Federal Rule of 

Criminal Procedure 6(e), but that rule has no bearing on the constitutionality of 

Missouri’s grand jury secrecy regulations. Although these cases pertain to the 

release of grand jury material, they do not address a juror’s rights under the Free 

Speech Clause. See, e.g., In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 

154 (D.C. Cir. 2007) (per curiam) (explaining that “there is no First Amendment 

right of access to secret grand jury matters,” and instead, in federal cases, “Rule 6(e) 

governs what [the court] may or may not release to the public”). And even if it were 

relevant to Doe’s claim, Rule 6(e) specifically prohibits “a grand juror” from 

“disclos[ing]” any matter occurring before the grand jury, including “the grand 

jury’s deliberations or any grand juror’s vote.” Fed. R. Crim. P. 6(e)(2)(B)(i), 

6(e)(3)(A). 
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III.

For the foregoing reasons, we affirm. 

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