Fox v. State, decided yesterday by the Missouri Supreme Court, in a unanimous opinion written by Judge Mary Russell, holds unconstitutional the following Missouri statute (enacted in 2020):
Before commencing an interview of a survivor [of sexual assault], a law enforcement officer, prosecuting attorney, or defense attorney shall inform the survivor of the following:
(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) The survivor’s right to consult with an employee or volunteer of a rape crisis center during any [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) The survivor’s right to have a support person of the survivor’s choosing present during any [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 ….
Here’s the heart of the court’s First Amendment analysis:
Notices requiring individuals to speak a specific message constitute content-based [speech] regulations. Importantly, speech uttered by “professionals” receives constitutional protection. NIFLA v. Becerra (2018). Yet less protection is provided when laws require “professionals to disclose factual, noncontroversial information in their ‘commercial speech'” or regulate professional conduct and only incidentally burden speech. Aside from these categories, professionals are entitled to the protections of the First Amendment, and strict scrutiny applies when content-based regulations restrict an attorney’s noncommercial speech.
{Commercial speech is “usually defined as speech that does no more than propose a commercial transaction[.]” To the extent the State alleges section 595.201 requires professionals to provide factual, noncontroversial disclosures during commercial speech, the contention is unpersuasive. 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]he State posits section 595.201.2(4) regulates attorney conduct, noting Challengers alleged the General Assembly impermissibly regulated attorneys’ professional conduct and defense attorneys may be required to engage in conduct, such as summoning certain individuals to an interview. It then alleges any regulation of speech is incidental because the information is factual, multiple non-judicial actors are also required to make these disclosures, and attorneys need not agree with the required statements or answer questions.
“While drawing the line between speech and conduct can be difficult, [the Supreme] Court’s precedents have long drawn it[.]” When analyzing whether a law regulates professional conduct or speech, the following considerations are helpful:
Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s [limitations].
Lowe v. SEC (1985) (White, J., concurring). Section 595.201.2(4) is not closely related to professional conduct. Initially, the personal nexus between professional and client is attenuated. While the interviews take place in the context of a profession, the individual being interviewed is not a client of the defense attorney, and section 595.201.2(c)(4) imposes 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. In conjunction with these issues, the application of section 595.201.2(4)(c) may create further concerns regarding professional obligations, as Challengers assert complying with the statute will hinder their relationship with their actual clients.
Additionally, the exercise of professional judgment is not required. While a defense attorney exercises his or her judgment when deciding who to interview and how to conduct an interview, the required disclosures are unrelated to those aspects of the profession. Instead, specific information must be provided to the individual being interviewed, regardless of one’s professional judgment. Although section 595.201.2(4)(c) may require defense attorneys, as interviewers, to determine whether the presence of another would be detrimental, that requirement is closely connected to the disclosure of rights. And, while some conduct, such as obtaining a signed receipt, is mandated, providing certain information to a survivor is an important aspect of the provision’s requirements. Section 595.201.2(4) is not a regulation of professional conduct that incidentally burdens speech. It is primarily a burden on speech that tangentially relates to professional conduct.
The State analogizes this case to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (plurality opinion). There, a law “require[d] that a woman seeking an abortion give her informed consent prior to the abortion procedure[ ] and specifie[d] that she be provided with certain information at least 24 hours before the abortion [was] performed.” Physicians contended the compelled disclosures violated their First Amendment rights. The Supreme Court held the right not to speak was implicated “only as part of the practice of medicine, subject to reasonable licensing and regulation by the State[,]” and found the requirement was not constitutionally infirm….
Relying on State v. S.F. (Mo. 2016), the State argues this Court has recognized regulations of conduct that incidentally impact speech are permissible. There, this Court analyzed a statute making it unlawful for an individual with HIV to engage in sexual relations with another without that person’s knowledge of and consent to the exposure to HIV. The defendant argued her free speech rights were violated because she was required “to speak that which she would prefer not to say, i.e., that she is HIV positive.” This Court disagreed, finding the statute regulated conduct, rather than speech. It stated the statute’s purpose was “to prevent certain conduct that could spread HIV to unknowing or nonconsenting individuals[,]” not compel disclosure. Because any required disclosure imposed only an incidental burden on speech, the statute did not violate freedom of speech protections.
Unlike the above cases, the regulation of speech, compared with the regulation of conduct, is much more significant. 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. The regulation here, though, does not closely correspond to a preexisting professional requirement, and the compelled speech is more significant than the regulation of professional conduct.
S.F. also supports this distinction. There, the statute solely prohibited conduct and did not directly compel a disclosure. While a disclosure may have been required, the statute’s purpose was to regulate conduct. Dissimilarly, section 595.201.2(4) specifically compels speech in certain circumstances. Conduct—engaging in an interview—may trigger the speech requirement, but the disclosures are the true focus of the statute. Some conduct, like obtaining a signature from the individual being interviewed or summoning another, may also be required. But these actions are secondary to informing survivors of 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.” And the court said no:
[Under the] narrow tailoring [requirement,] … “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” The State has not shown requiring defense attorneys to provide disclosures is narrowly tailored….
Both Challengers and the State, at oral argument, acknowledged victim interviews are usually conducted jointly. Yet, in these circumstances, defense attorneys may be required to provide the information. As a less restrictive alternative, a prosecutor or law enforcement officer could provide the required information during joint interviews.
The State also contends section 595.201.2(4) properly places requirements on defense attorneys because they might be the first members of the criminal justice system to interact with survivors. It references defense attorneys interviewing survivors of an accomplice or another potential perpetrator. This contention is unconvincing.
First, section 595.201.2(4)’s requirements are not limited to these circumstances, which suggests the statute is broader than necessary. Second, the State does not indicate how often such interviews take place or allege if they are common. Third, it fails to establish section 595.201.2(4)’s objectives can be achieved only if defense attorneys inform survivors of their rights in these scenarios. While it generally suggests relying on others is insufficient, it does not state that defense attorneys conduct these interviews alone or indicate exactly why prosecutors or law enforcement officers could not inform survivors of their rights shortly before or at the beginning of the interview.
Absent more specific allegations, the State has failed to establish that the requirements placed on defense attorneys by section 595.201.2(4) are necessary to achieve the provision’s objectives, that the mandate is narrowly tailored, or that no less restrictive alternatives exist. As such, the circuit court properly determined section 595.201 is constitutionally invalid as applied to defense attorneys.
The court’s distinction of Casey and S.F. strikes me as not quite sound; for instance, I wouldn’t say that the “professional conduct” in Casey was “obtaining informed consent,” or that “engaging in an interview” here is any more “conduct” than is the disclosure. Nor would I focus on the government’s “purpose” and whether requiring disclosure was a primary or secondary purpose.
Rather, the laws in Casey and S.F. sought to regulate physical nonspeech conduct (performing an abortion, or having sex), and mandated disclosure as a means of making sure that the conduct was fully informed. Here, the law regulates a lawyer’s speech with a witness (which is what an interview consists of). There is no separate nonspeech conduct that is being regulated, and to which the disclosure requirement is incidental.
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