PHOENIX, Az — In a monumental victory for free speech, a federal judge has ruled that Arizona’s “Victim-Contact Prohibition” is unconstitutional because it violates the First Amendment rights of criminal defense lawyers and investigators. The lawsuit challenging the statute, originally filed in 2017, was brought on behalf of Arizona Attorneys for Criminal Justice and several individual criminal defense lawyers and an investigator.
Arizona’s Victim-Contact Prohibition, A.R.S. § 13-4433(B), was enacted in 1991 and forbade criminal defense attorneys and their agents, including investigators, from “initiat[ing] contact” with crime victims. This law, which has no counterpart in federal law or any other state law, undermined the fairness of the criminal legal system by favoring the prosecution and blocking contact between defense lawyers and crime victims.
“For decades, prosecutors in Arizona wielded this law as a sword to prevent all communication between defense attorneys and crime victims to the detriment of victims, the accused, and the truth-seeking function of the system,” said Jared Keenan, legal director of the ACLU of Arizona. “Judge Logan’s well-reasoned and thorough ruling puts to rest the false notion that contact with prosecutors, and prosecutors alone, is helpful to crime victims.”
The statute blocked only certain people – criminal defense attorneys and others on the defense team – from speaking with crime victims and required the defense team to initiate contact with victims only through the prosecutor. The court found that this unjustified discrimination among speakers violates the First Amendment. The court further found that the statute is overbroad in its sweep and noted that “there is evidence that some communication may be helpful to them.”
“Criminal defense lawyers and investigators have free-speech rights, and they don’t lose those rights when they sign up to represent a criminal defendant,” said Kathy Brody, an attorney with MITCHELL | STEIN | CAREY | CHAPMAN, PC. “This unconstitutional statute was such an egregious overreach that the Attorney General and other defendants were unable to present any evidence that the law was needed for any reason.”
This lawsuit, AACJ v. Brnovich, was filed by the American Civil Liberties Union of Arizona along with law firms MITCHELL | STEIN | CAREY | CHAPMAN, PC and Killmer, Lane & Newman, LLP. The plaintiffs in this case include Arizona Attorneys for Criminal Justice (AACJ), criminal defense attorneys John Canby, Christopher Dupont, Jeffrey A. Kirchler, Richard D. Randall, and Richard L. Lougee, and private investigator Rich Robertson.