The American Civil Liberties Union (ACLU) has started a lawsuit in federal court over a section of the Arizona Victim’s Rights Law. The plaintiffs in the case – several criminal defense attorneys – are asking the court to declare that section of the law unconstitutional as an illegal prior restraint on speech. Here’s what the lawsuit is about.
Victim’s right to refuse an interview – 13 A.R.S. § 13-4433
One of the things the victims’ right law does it to try to protect crime victims from harassment. There are various ways to do that, including a section of the law that says victims are not required to submit to interviews by the defendant in the case, defense counsel, or any agent of the defendant. So far, so good. But the law goes on to state, in subsection B, that the only way a defense attorney can speak to a crime victim is through the prosecutor’s office. And that is the provision the ACLU is challenging. The lawsuit says that it’s unconstitutional because it’s a “prior restraint.”
What is a “prior restraint” on speech?
A prior restraint on speech is a law (or other governmental action) that prohibits speech before it can take place. It is a form of censorship. Because of the seriousness of the problem, the Supreme Court has ruled that these types of restraints are presumptively unconstitutional.
In the Arizona case, the plaintiffs will have to show first, that this is in fact a restraint. Second, there is the question of whether the law falls into one of the exceptions to the general rule that these forms of censorship are invalid. Most cases upholding prior restraints involve national security (particularly during a time of war). And some involve limited restraints in the context of court cases, such as “gag orders.” But in these types of situations, it’s always important to recognize the collateral effects of the restraints.
Asking the Prosecutor’s Office for permission to interview a victim
The solution to the perceived problem of victim harassment is to require, effectively, that defense counsel ask the prosecutor’s office to set up an interview with the victim. The problem is that almost no victims consent to an interview after being “counseled” by the prosecutor. As a defense attorney, you need to gather the facts in a case. The law in question obviously throws a wrench into the fact-finding process. We’ll have to wait to see how the court rules on the issue.
The Feldman Law Firm PLLC
1 E. Washington Street
Phoenix, AZ 85004