Fox v. StateYesterday’s Missouri Supreme Court decision, written unanimously by Judge Mary Russell, declared unconstitutional this Missouri statute. It was passed in 2020.
Interviewing a survivor is necessary before you can begin the interview [of sexual assault]Survivors must be informed by a prosecuting or law enforcement attorney as well as a defense attorney.
(a) The survivor’s rights pursuant to this section and other rules and regulations …, which shall be signed by the survivor of sexual assault to confirm receipt;
(b) A survivor has the right to speak with an employee of or volunteer at a rape center in any time [such] interview … to be summoned by the interviewer before the commencement of the interview, unless no [such] employee or volunteer … can be summoned in a reasonably timely manner; [and]
(c.) Survivors have the right to have an advocate of their choice present at any time [such] interview …, unless the [interviewer] … determines in his or her good faith professional judgment that the presence of that individual would be detrimental to the purpose of the interview ….
The court’s First Amendment analysis is here:
Notifications that require people to communicate a message are content-based [speech] regulations. Significantly, the constitution protects speech made by “professionals”. NIFLA v. Becerra (2018). There is less protection when “professionals must disclose factual, uncontroversial data in their commercial speech'”, or when professional conduct is regulated and not incidentally burden speech. Apart from those categories, professionals have the right to the First Amendment. In addition, strict scrutiny is applied when content-based regulation restricts an attorney’s noncommercial speech.
{“Commercial speech” can be defined as speech that proposes only a commercial transaction.[.]”The State’s claim that section 595.201 obliges professionals to give factual, noncontroversial information during commercial speech is not convincing. When section 595.201.2(4) applies, defense attorneys are not proposing a commercial transaction, advertising a service, or acting purely on economic motivation and, therefore, are not engaging in commercial speech.} …
[T]Section 595.201.2(4) of the State’s Code regulates attorney behavior. This is in response to Challengers allegations that the General Assembly improperly regulated lawyers’ professional conduct. In addition, defense attorneys could be asked to participate in certain conducts, like summoning people to interview. According to the State, any regulation on speech is not necessary because it is factual. However, several non-judicial agents are required to also make disclosures. Attorneys do not need agree or be able answer questions.
It can be hard to draw the line between conduct and speech. [the Supreme]It has been long drawn by the Courts’ precedents[.]The following are useful considerations when evaluating whether or not a law regulates speech and professional conduct:
If there is no personal connection between client and professional, or a speaker doesn’t intend to exercise judgment for any individual with whom he is personally acquainted, regulation by government ceases to operate as legitimate regulation on professional practice. It becomes regulation on speaking and publishing, which is subject to the First Amendment. [limitations].
Lowe v. SEC (1985) (White, J., concurring). The relationship between professional conduct and section 595.201.2(4) does not seem to be very close. Initially, there is no personal connection between client and professional. Interviews are conducted in the context of profession. However, the interviewee is not considered a client by the defense attorney. Section 595.201.2(c),(4) creates new obligations. Attorneys owe duties to third parties, but no similar requirement—providing extensive information to the individual being interviewed regarding rights unrelated to whether one should seek counsel—previously existed in this context. The application of section 555.21.2(4)(c), which Challengers argue will lead to a decrease in their professional relationships with clients, may raise further questions about these obligations.
Furthermore, professional judgment is not mandatory. Although a defense lawyer may use his or her judgement when choosing who to interview and how to conduct interviews, it is not required to disclose any information that might be relevant to the practice of law. Regardless of professional judgement, interviewers must provide specific information to each individual. Section 595.201.2(4) may allow defense attorneys to assess whether the presence or not of another party would result in a negative outcome. However, the requirement to disclose rights is tightly connected. Although some behavior, such as getting a signed receipt is required, it is not mandatory to disclose certain information to survivors. Section 595.201.2(4) doesn’t regulate professional behavior that is incidentally harmful to speech. It is principally a burden on speech which tangentially refers to professional conduct.
This case is analogized by the State Casey v. Planned Parenthood of Southeastern Pennsylvania (1992) (plurality opinion). A law is required to be in force.[d]A woman who seeks an abortion must give informed consent before the procedure.[ ]Please specify[d]That she receive certain information no later than 24 hours prior to the scheduled abortion [was] performed.” Doctors argued that the forced disclosures infringed on their First Amendment rights. Supreme Court ruled that the right to not speak was only an aspect of practicing medicine and subject to regulation and licensing by the State[,]” and found the requirement was not constitutionally infirm….
Rely on State v. S.F. (Mo. (2016), the State claims that this Court has accepted regulations of conduct which incidentally affect speech as permissible. The Court looked at a statute which made it illegal for HIV-positive persons to engage in sexual relationships with others without their consent. She claimed her freedom of speech rights had been violated by being required to “speak what she prefers not to, i.e. that she’s HIV positive”. The Court disagreed and ruled that the statute was a regulation of conduct rather than speech. According to the statute, its purpose was to “prevent certain conducts that could spread HIV unknowingly or not consentingly”.[,]”Do not require disclosure. The statute didn’t violate freedom-of-expression protections because any disclosure required imposed an only incidental burden on speech.
Contrary to the cases above, regulation of speech has a much greater impact than regulation of conduct. The regulation[]In Casey … [was] tied to a preexisting professional requirement—obtaining informed consent before performing a procedure…. As a result, the required speech—providing certain disclosures—was incidental to professional conduct—obtaining informed consent. This regulation, however, is not in line with a preexisting professional need and the required speech is much more important than the regulation regarding professional conduct.
S.F.This distinction also stands. The statute only prohibited certain conduct, and didn’t require disclosure. A disclosure could have been required but the purpose of this statute was to regulate conduct. Section 595.201.2(4), however, specifically prohibits speech under certain conditions. Conduct—engaging in an interview—may trigger the speech requirement, but the disclosures are the true focus of the statute. Other conduct may be necessary, such as obtaining signatures from interviewees or summoning others. However, these are not required to inform survivors about their rights.
Once the court concluded that the law was a speech compulsion (not justifiable as a regulation of professional conduct), the court evaluated whether the law passed strict scrutiny—i.e., was “narrowly tailored” to “serve[] a compelling state interest.” But the court said no
[Under the]Tailored to a narrow size [requirement,] … “[i]If a more restrictive option would be better for the Government, then the legislature should use it. The State has not shown requiring defense attorneys to provide disclosures is narrowly tailored….
At oral argument both the State and Challengers acknowledged that victim interviews are often conducted in a joint setting. However, it is possible that defense lawyers may have to disclose the required information in such circumstances. An alternative is to have a prosecution or law enforcement officer provide required information at joint interviews.
Additionally, the State claims that section 595.201.2(4) requires defense attorneys to meet certain requirements because they may be the first criminal justice officials to contact survivors. The section mentions defense lawyers interviewing survivors who are victims of an accomplice, or other possible perpetrator. This claim is not persuasive.
The requirements of section 595.201.2(4) aren’t limited to such circumstances. This suggests that the statute may be more expansive than it is necessary. It doesn’t say how many such interviews are conducted or if it is common. It fails to state that section 595.201.2(4) can only be met if survivors are informed by defense attorneys. Although it suggests that relying upon others is not sufficient, it doesn’t state that defense lawyers conduct interviews by themselves or explain why they could not notify survivors about their rights at the start or end of an interview.
The State does not have any specific claims to support the assertion that 595.201.2(4) requires defense attorneys to meet the objectives of the law, that it is restrictive or narrowly tailored. The circuit court correctly ruled that section 595.201 was constitutionally null as it applies to defense lawyers.
It is the distinction of Casey And S.F. This strikes me as not very sound. I don’t think the “professional behavior” is in any way acceptable. CaseyWas it “obtaining informed permission”? Or that “engaging with an interview” is more “conduct than” the disclosure. I would not focus on government “purpose”, or whether disclosure is required for a primary purpose.
The laws are more important. Casey And S.F.To regulate non-speech physical conduct, such as performing an abortion or having sexual relations with another person, disclosure was required. The law governs the interaction of a lawyer and a witness, which is what constitutes an interview. It is only nonspeech conduct which is being regulated. The disclosure requirement is therefore not separate.