The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Court Strikes Down Ban on Defendants' Lawyers Contacting Crime Victims (Except Through Prosecutors)


The Arizona law, which appears to be quite unusual among the states, provides:

The defendant, the defendant's attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor's office. The prosecutor's office shall promptly inform the victim of the defendant's request for an interview and shall advise the victim of the victim's right to refuse the interview.

Judge Steven Logan (in yesterday's Arizona Attorneys for Criminal Justice v. Ducey) concluded that this was a speaker-based restriction on speech that appears to be justified by the expected content of the speech, and thus had to be judged under strict scrutiny, which the law failed. The court stressed that witnesses have every right to refuse to talk to the defense team, but the law "is not 'actually necessary'" to protect that, since "victims receive ample notice of their right to refuse a defense interview under several other provisions of state law." As to protecting witnesses from "intimidation, harassment, or abuse,"

Even if there were evidence of an actual problem, less restrictive alternatives—including regulations of professional conduct, the possibility of court sanctions, and the criminalization of harassment—already protect against harassment of victims without burdening Plaintiffs' First Amendment rights. And unlike the Statute, those regulations are targeted towards speech that would violate the victim's right to be free from harassment; the Statute is overinclusive because it restricts all defense-initiated speech to victims regardless of whether it goes to the State's interest in protecting victims' rights—making the Statute exceedingly overinclusive with respect to this interest.

The court focused on the rights of the defendants' lawyers and their agents, not the defendants themselves, and this is reflected in the injunction:

When specifically asked by the Court at the Bench Trial, Plaintiffs stated that they seek to enjoin enforcement of the Statute only against "attorneys and their agents," not against criminal defendants themselves. Although Plaintiffs' proposed form of injunction provides no such limitation, in light of that answer and, more importantly, the lack of evidence or argument regarding the First Amendment rights of criminal defendants and the fact that Plaintiffs are composed only of attorneys and a private investigator who works on behalf of attorneys, the Court will limit its injunction to enjoin enforcement of the Statute only against attorneys and their agents.

{The Court notes that the Statute prohibits "[t]he defendant, the defendant's attorney or an agent of the defendant" from initiating direct contact with the victim. But in light of Plaintiff Robertson's testimony that in criminal defense cases, he always works on behalf of the criminal defense attorney, the Court will enjoin enforcement of the Statute only against attorneys and agents of attorneys because such an injunction will relieve Plaintiffs' injuries in full.}

Congratulations to Jared G. Keenan (ACLU of Arizona, Kathleen E. Brody (Mitchell | Stein | Carey | Chapman PC), and David A. Lane (Killmer, Lane & Newman, LLP), who represented the plaintiffs. Thanks to Alex Satanovsky for the pointer.