Missouri S. Ct. Strikes Down Requirement That Defense Lawyers Inform Sexual Assault Victims of Certain Matters
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 cons
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