Defense Counsel Forced Advice Violates First Amendment

The Missouri Supreme Court has held that a statute that required defense attorneys to provide information to victims of sexual assault offenses to be an unconstitutional violation of speech rights

Five public defenders and three criminal defendants filed an action for declaratory and injunctive relief, challenging the constitutional validity of certain statutes that relate to victims of sexual offenses. The provisions were enacted by Senate Bill No. 569 (“SB 569”) in 2020. Most importantly, the action attacked section 595.201,1 which requires criminal defense attorneys to provide information to victims of sexual assault offenses. The circuit court 1) determined section 595.201 violated defense attorneys’ rights to freedom of speech, 2) declared it constitutionally invalid as applied to defense counsel, and 3) enjoined its enforcement. The circuit court, however, rejected various challenges to SB 569 as a whole by holding passage of the law did not violate procedural limitations—namely, the original purpose, clear title, and single subject requirements— imposed by the Missouri Constitution. The judgment is affirmed.

From the court’s summary

(1) Section 595.201.2(4), RSMo, violates the challengers’ free speech rights. Laws regulating speech based on its communicative content are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests. Professional speech can be afforded less protection when the information required is commercial speech or regulates conduct and only incidentally burdens speech. But section 595.201.2(4) is not closely related to professional conduct as it imposes new obligations on attorneys that previously did not exist in the interviewing context, creates concerns regarding defense attorneys’ relationship with their clients, and does not require the exercise of professional judgment. Furthermore, the regulation of speech in this case is more significant than the statute’s regulation of professional conduct. Therefore, because the statute is not a regulation of conduct that incidentally burdens speech, strict scrutiny applies, and the statute must be narrowly tailored to serve a compelling state interest. The state failed to prove the regulation of speech was narrowly tailored in that the requirement defense attorneys inform survivors of certain rights was not limited in any fashion despite less strict alternatives being available. The circuit court, therefore, properly determined section 595.201 is constitutionally invalid as applied to defense attorneys.

(Mike Frisch)