[00:00:18] Speaker 02:
Our next and final case this morning is number 2216729 Mays versus Arizona Attorneys for Criminal Justice.

[00:00:37] Speaker 02:
Mr. Samuels.

[00:00:41] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:44] Speaker 01:
My name is Alexander Samuels.

[00:00:46] Speaker 01:
I'm here with my colleague Ashley Levine on behalf of Arizona Attorney General Mays.

[00:00:53] Speaker 01:
I'm going to try to save about five minutes for rebuttal, but I recognize it'll probably be my job to watch the clock.

[00:00:59] Speaker 01:
To try to help focus some of the arguments here in this case, I want to talk briefly from our perspective about what this case is not about and what this case is about.

[00:01:07] Speaker 01:
This case is not about a defendant's right to counsel or other concerns that might otherwise be rooted in the Sixth Amendment.

[00:01:15] Speaker 01:
In fact, it's not about any right of criminal defendants at all, including their First Amendment rights.

[00:01:21] Speaker 01:
Even in enjoining the statute below, the district court enjoined the law only as applied to defense attorneys and their agents, not as applied to defendants themselves.

[00:01:32] Speaker 01:
This case is also not about Arizona rule of criminal procedure 39, which restricts much of the same conduct that this statute restricts.

[00:01:40] Speaker 01:
AACJ has not challenged that rule in this litigation.

[00:01:45] Speaker 00:
Can I ask a question about that?

[00:01:47] Speaker 00:
We previously found that there was standing, despite the failure to challenge that rule, because there was a difference between the two rules.

[00:02:01] Speaker 00:
Does that, and specifically, I think, because the criminal procedure rule only applies to interviews and this rule applies to any contacts, something like that.

[00:02:19] Speaker 00:
Does that mean that this case can only be about issues within that difference, in other words,

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Are we limited by the standing ruling to a narrow range of the coverage of the statutory rule?

[00:02:44] Speaker 01:
I don't think you are, Your Honor.

[00:02:46] Speaker 01:
I do think the district court looked at the entire coverage of the statute.

[00:02:50] Speaker 00:
Well, he may have, but it may have been wrong.

[00:02:54] Speaker 01:
We have not taken the position and I'm not taking the position here that the district court was wrong to look beyond the, you know, if you're sort of slicing up the Venn diagram, the only the one portion over here that's not covered by the rule.

[00:03:07] Speaker 01:
I'll confess that I think even if the court's analysis was restricted to victim contact that was not covered by the rule, I'm not sure it would impact the analysis in this case significantly, but ultimately

[00:03:23] Speaker 01:
We believe the district court was right to look at the full statute.

[00:03:27] Speaker 04:
Let me try to focus on, if you would.

[00:03:32] Speaker 04:
And this may not be a First Amendment problem.

[00:03:34] Speaker 04:
But I want to focus on what the statute forbids and the differing treatment it gives people.

[00:03:41] Speaker 04:
The statute says is that if defense counsel wants to contact a victim, must first notify the prosecutor, who then notifies the victim advocate, who sends one of these forms to the victim, who can then decide whether or not to consent to the contact or not.

[00:03:56] Speaker 04:
That's a fair description of the statute.

[00:03:58] Speaker 01:
Yes, the statute doesn't necessarily require a lot of those specifics, but that's how it plays out.

[00:04:02] Speaker 04:
That's how it plays out.

[00:04:03] Speaker 04:
Yes.

[00:04:06] Speaker 04:
A prosecutor who wants to talk to the victim need not go through those procedural steps, correct?

[00:04:12] Speaker 01:
That's correct, Your Honor.

[00:04:13] Speaker 04:
Must the prosecutor, and I'm assuming that the victim still must consent to speak to the prosecutor in some sense.

[00:04:20] Speaker 04:
The victim has the right to say to the prosecutor, I just don't want to talk to you.

[00:04:25] Speaker 01:
I think that's certainly right.

[00:04:26] Speaker 04:
I can't find an Arizona case that says it, but I also can't find an Arizona case that says, no, you're obligated to talk to the prosecutor.

[00:04:34] Speaker 01:
I mean, I think under the ordinary principles that, you know, in order for an attorney in a case to talk to anyone, generally that person is going to have the consent to contact.

[00:04:42] Speaker 04:
So what we have here is a disparate treatment of defense counsel and prosecutors.

[00:04:48] Speaker 04:
A prosecutor doesn't have to go through the victim's advocate to get the consent.

[00:04:53] Speaker 04:
that prosecutor can go directly to the victim to get the consent.

[00:04:59] Speaker 04:
Seems unfair.

[00:05:01] Speaker 04:
Statute was written by prosecutors.

[00:05:02] Speaker 04:
So I understand.

[00:05:03] Speaker 04:
Uh, but does that, I'm trying to figure out where that, if anywhere that comes into our first amendment analysis.

[00:05:12] Speaker 01:
Well, I think it might help in answering that question to separate out several stops on the first amendment analysis here because I do think there are several questions that need to be resolved along the way.

[00:05:23] Speaker 01:
The first is, is this a regulation of conduct or is this a regulation of speech?

[00:05:28] Speaker 01:
Our position is obviously, as detailed in the briefs, that this is really a regulation of professional conduct.

[00:05:34] Speaker 02:
What does the professional add to that anymore after NIFLA?

[00:05:39] Speaker 01:
So I think NIFLA undoubtedly says that professional speech as a category cannot be treated differently.

[00:05:47] Speaker 01:
NIFLA does, however, talk about how there are a couple categories that are treated differently, and conduct is treated differently.

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And so I think it leaves intact any holdings of this court about conduct, and I think this court observed that intangibly.

[00:06:01] Speaker 04:
Does it matter that it's professional conduct, though?

[00:06:03] Speaker 04:
That's the question, I guess.

[00:06:05] Speaker 04:
I thought Judge Johnstone was asking.

[00:06:07] Speaker 04:
So for example, let's assume this statute prevented defendants from contacting victims.

[00:06:16] Speaker 04:
Would it pose First Amendment problems?

[00:06:20] Speaker 04:
Or would it merely just regulate, in your view, conduct as opposed to professional conduct?

[00:06:26] Speaker 01:
The statute does in fact regulate defendants, but I do think the analysis is maybe a little bit different for defense counsel versus defendants.

[00:06:32] Speaker 01:
What I would say is

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Certainly, conduct is going to be looked at differently under the First Amendment, regardless of whether it's professional conduct or not.

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But I do think the professional nature of the conduct here and the nature of defense counsel's relationship or desire to speak with the victim in the first place, it does matter.

[00:06:50] Speaker 01:
I think it matters somewhat significantly.

[00:06:55] Speaker 00:
The statute as such, which regulates contact, maybe that's conduct.

[00:07:00] Speaker 00:
But as it's played out,

[00:07:04] Speaker 00:
there are these four letters that are sent.

[00:07:07] Speaker 00:
In other words, you could administer the statute as written, as I understand it, by having the attorney for the defendant give the prosecutor a letter or requesting an interview and then passing that on to the defendant, to the victim.

[00:07:24] Speaker 01:
There is, there's a subsection in the statute that would not require the prosecutor to pass the letter on to the victim, but I think they have the discretion to do so.

[00:07:31] Speaker 00:
Right.

[00:07:32] Speaker 00:
So you could administer it that way, and you'd have a lot less problems, it seems to me.

[00:07:35] Speaker 00:
The problem is that you could say, well, this is just contact.

[00:07:43] Speaker 00:
It's a question of how it's getting there.

[00:07:45] Speaker 00:
But what you're actually doing is sending a letter that is in the voice of the attorney general, but it appears to be, at least some of the letters, certainly seem to be dissuading the victim from proceeding to this interview.

[00:08:01] Speaker 00:
not simply passing on a request.

[00:08:05] Speaker 00:
So it starts to kind of morph in terms of whether you're just regulating the question of who's making the contact, and it's contact instead you're changing the contact.

[00:08:19] Speaker 01:
I don't think that's necessarily, I mean certainly

[00:08:22] Speaker 01:
It plays out differently in the sense that the victim is the recipient of a letter rather than in the absence of a statute, the victim might have a defense attorney show up on their doorstep and immediately have contact with them.

[00:08:31] Speaker 00:
Right, okay.

[00:08:33] Speaker 00:
So a rule that said you can't go to the doorstep, you have to write a letter, for example.

[00:08:38] Speaker 00:
That would be a different statute with a different

[00:08:44] Speaker 04:
Isn't that what the statute says, effectively?

[00:08:49] Speaker 04:
It doesn't say you have to write a letter, but you must, you can't initiate contact directly.

[00:08:54] Speaker 01:
That's right.

[00:08:55] Speaker 01:
It prohibits defense counsel from making direct contact.

[00:08:58] Speaker 01:
It requires the prosecutor to notify the victim of the defense attorney's desire to speak with them.

[00:09:04] Speaker 00:
But what's actually happening is that they are writing a letter that says considerably more than that and is certainly fairly viewed often, just waste of letter, one that is

[00:09:15] Speaker 01:
Well, I think what the letters do, and there's a few of them in the record, including the one from the attorney general's office, is they quite clearly advise the victim of their right to decline to be interviewed by defense counsel.

[00:09:25] Speaker 00:
Not only do you have no right, but you absolutely have no right.

[00:09:28] Speaker 00:
No obligation, but you absolutely have no obligation.

[00:09:32] Speaker 00:
And you can terminate the interview whenever you want.

[00:09:34] Speaker 00:
And you can have the attorney general there, the prosecutor there, and so on.

[00:09:41] Speaker 01:
Yeah, I think I would push back Judge Berzon on the idea that that is necessarily going to dissuade victims.

[00:09:46] Speaker 01:
I mean, I think those plainly are the victim's rights under the Arizona Constitution and under Arizona statutes.

[00:09:51] Speaker 02:
Then why doesn't the statute require the prosecutor to do it?

[00:09:55] Speaker 01:
Well, I think the prosecutor does pretty clearly have to advise victims of all of their rights.

[00:09:59] Speaker 01:
I think that is one obligation imposed on prosecutors.

[00:10:02] Speaker 02:
Using this letter?

[00:10:02] Speaker 00:
Don't they do that separately?

[00:10:04] Speaker 01:
Well, so they generally do that early in the case with a general advisement of all the rights, yes.

[00:10:09] Speaker 00:
So why isn't that good enough at that point?

[00:10:11] Speaker 01:
I'm sorry, I didn't hear your question.

[00:10:12] Speaker 00:
So by repeating it all, it seems pretty plain that they're trying to dissuade from going forward with the interview.

[00:10:21] Speaker 01:
Well, I think the statute serves another goal, which is it provides the victim an opportunity to be concurrently notified of their rights, not just have received a letter many months ago, perhaps, about their general rights, and to make an informed decision on their own time being concurrently informed of those rights.

[00:10:38] Speaker 00:
I have a question.

[00:10:40] Speaker 00:
The statute does not have a similar rule about the media, is that right?

[00:10:44] Speaker 01:
That's correct, Your Honor.

[00:10:45] Speaker 00:
Suppose it did, would that be valid?

[00:10:47] Speaker 01:
I think that would be a much more difficult case.

[00:10:49] Speaker 00:
And why?

[00:10:50] Speaker 01:
I think regulating media contact is going to implicate obviously a number of other interests on the other side of the spectrum, but I think also if you look at the difference between regulating defense counsel contact and media contact, this is where in part we think the district court just got it wrong and did clearly error in one way.

[00:11:08] Speaker 01:
In failing to evaluate how defense counsel contact could be uniquely harmful, and it's not to say it will be uniquely harmful in every single case, we think it's really more of a matter of risk.

[00:11:19] Speaker 01:
And that defense counsel contact.

[00:11:21] Speaker 00:
I mean, you actually think that that the defense counsel is going to upset people more than the media as they come knocking on the door and want to talk to people.

[00:11:28] Speaker 00:
And is there any more than that?

[00:11:30] Speaker 00:
Is there anything in the record to suggest that?

[00:11:32] Speaker 01:
I think there is.

[00:11:32] Speaker 01:
And I think it actually comes from a CJ's own expert.

[00:11:35] Speaker 01:
their own expert testified that contact with defense counsel they are particularly careful about, because the testimony was in the context of homicides, said that contact with agents of the defendant might be particularly risky because the victim who is having this contact will associate those people with the defendant who did serious harm to their family member.

[00:11:56] Speaker 01:
And so I think is that testimony, in addition to testimony from representatives of the attorney general's

[00:12:01] Speaker 02:
The defense counsel are subject to rules of professional responsibility that don't apply to the media, so I guess if we're trying to figure out what's the value added here of running the defense counsel through the prosecution for these contacts, and is any of that value added something that is neutral as to both the prosecution and the defense?

[00:12:23] Speaker 01:
Well, I do think the victim is served well by having a single point of contact and the predictability of having that single point of contact.

[00:12:30] Speaker 00:
Well, that may be true.

[00:12:31] Speaker 00:
But again, this is an odd choice of single point of contact.

[00:12:34] Speaker 00:
I mean, if, for example, you had a rule that said there was a victim's advocate person and that all contacts, prosecutors and defendant, would go through that person, I think you'd have very little problem.

[00:12:50] Speaker 00:
But to have the adversary lawyer be the person that the contact's going through is a very strange rule.

[00:12:57] Speaker 01:
I take the point, I do think on the flip side of that though, there is a unique benefit in having the prosecutor's office be the single point of contact, which is that the prosecutor is obligated by law to clearly notify the victim of their rights.

[00:13:08] Speaker 01:
And so I think that helps serve some of the functions of the statute.

[00:13:11] Speaker 01:
Getting back to the media point, I also think that differentiating between defense counsel and media, there is another big difference, which is that in the context of ongoing legal proceedings, which is the only time that this statute applies, that courts frequently hold

[00:13:26] Speaker 01:
that the participants in the legal proceedings can be regulated in very different ways than non-participants.

[00:13:32] Speaker 00:
A lot of the district courts hypotheticals and pointing to the record and also the plaintiffs have to do with things that the attorneys or the defense team want to say to the victims that isn't necessarily directly related to the case.

[00:13:56] Speaker 00:
or isn't investigatory, isn't perhaps representational.

[00:14:03] Speaker 00:
Could we construe the statute so as to apply only to attorney interviews or investigator interviews that relate directly to the case itself and not to other kinds of speech?

[00:14:22] Speaker 01:
I think you might be able to consider it that way.

[00:14:24] Speaker 01:
There is one Arizona state case that gets towards this a little bit, and that's the, I think it's pronounced Champlain case that's cited in the briefs.

[00:14:32] Speaker 01:
That's a case where the victims who were involved were victims of the defendant's conduct in one case, but were witnesses and not victims to a defendant's conduct in another case.

[00:14:41] Speaker 01:
And the Arizona Supreme Court in that case held that the victims could be compelled to have depositions or interviews taken in the case where they were not victims, despite 1340-4433 being out there and existing.

[00:14:53] Speaker 01:
And so plainly, the purpose of 1340-433 relates directly to ongoing proceedings.

[00:14:59] Speaker 01:
It doesn't apply at all until charges are brought.

[00:15:02] Speaker 01:
It doesn't apply to defense attorneys on the whole.

[00:15:04] Speaker 00:
I mean, as I understand it, what are the fears of the

[00:15:10] Speaker 00:
plaintiffs here, if they're going around and soliciting votes, generally, and they knock on the door of somebody who happens to be a victim and talk to them, then they are violating the statute.

[00:15:26] Speaker 00:
And is your understanding that that's not the case?

[00:15:31] Speaker 01:
Yeah.

[00:15:31] Speaker 01:
I mean, the attorney general's position is that inadvertent contact, for example, or- Well, suppose it's not inadvertent.

[00:15:36] Speaker 00:
Suppose they know it's the victim, but what they want to do is tell them to vote for X.

[00:15:40] Speaker 01:
Yeah, and the Attorney General's position is that that is not necessarily covered by the statute, that the statute is really concerned with the attorney's role in the ongoing legal proceedings.

[00:15:48] Speaker 04:
And this is a facial attack?

[00:15:50] Speaker 01:
It is, Your Honor, yes.

[00:15:51] Speaker 04:
So there's no contention in this case that anybody has either ever been disciplined or face-disciplined because they went door-to-door to solicit votes?

[00:16:02] Speaker 01:
Certainly none that I'm aware of, Your Honor.

[00:16:04] Speaker 04:
And I guess if I were speaking for the other side, I'd say that would be a pretty hollow victory for them if they were to win the case on that basis.

[00:16:11] Speaker 04:
Because they want the whole statute to be gone.

[00:16:14] Speaker 04:
They don't want something that says, yeah, we can go door to door to the source of the votes, but we can't contact them at all about the case.

[00:16:21] Speaker 01:
But I mean, I think the core point here of the statute really being aimed at the ongoing legal proceedings and the defense attorneys in their professional role is an important one.

[00:16:31] Speaker 01:
So you think about a lot of what defense attorneys want to do is actually collecting information rather than delivering it.

[00:16:36] Speaker 01:
But even in the small portion of this that we're talking about where they want to deliver information,

[00:16:42] Speaker 01:
At the trial, there was raised the question of capital cases where defense attorney might want to advocate to the victim or member of the victim's family as to why they might not want to support the death penalty.

[00:16:53] Speaker 01:
Undoubtedly, I can see why defense counsel wants to do that, but it's in their professional capacity.

[00:16:58] Speaker 01:
They want to do that because it's in their client's interest and their client wants them to do it.

[00:17:01] Speaker 01:
If defense counsel in their own head thought,

[00:17:04] Speaker 01:
that they were actually very much for the death penalty as a policy matter.

[00:17:08] Speaker 01:
And maybe they thought their client was guilty of a crime so heinous that they should be executed.

[00:17:12] Speaker 01:
It wouldn't matter.

[00:17:14] Speaker 01:
They're not there to speak their mind.

[00:17:15] Speaker 01:
They are there to speak their clients.

[00:17:17] Speaker 02:
So we've got Gentile, which you've suggested, although the further we get from this representational standpoint, the more we get outside of the lowered standard of Gentile.

[00:17:26] Speaker 02:
And then we have NIFLA, which says that lawyers

[00:17:31] Speaker 02:
professional speech, at least, is just ordinarily protected under the First Amendment.

[00:17:38] Speaker 02:
So with regard to the sphere of speech that's kind of stipulated to be involved here, and there's some questions on the edges, trying to figure out, I guess, first of all, it's a preliminary question.

[00:17:52] Speaker 02:
I mean, why isn't this a burden on

[00:17:57] Speaker 02:
the defense that the prosecution doesn't have and why isn't that at least an incidental burden on speech?

[00:18:03] Speaker 01:
Well, again, I want to separate out a little bit.

[00:18:05] Speaker 01:
So first on the conduct versus speech question, there can be incidental burdens on speech and still we might have this be conduct, but I want to also get to some of the other parts of your question.

[00:18:15] Speaker 01:
So let me assume for a second that you disagree with me there and that this is speech.

[00:18:20] Speaker 01:
If it is speech, we do think Gentile provides the right test despite NIFLA.

[00:18:24] Speaker 01:
NIFLA does not say anything at all that indicates that it's trying to change the law.

[00:18:28] Speaker 01:
It definitely says that professional speech as a wholesale category should not be treated as some special category.

[00:18:36] Speaker 01:
But it does not purport to be overturning anything or changing the law in any significant way.

[00:18:41] Speaker 01:
And genteel has been around for decades at this point.

[00:18:43] Speaker 01:
And matter of fact, I took a look on Westlaw.

[00:18:45] Speaker 01:
It's been cited a few times since the reply brief in this case was filed, including in the Trump prosecution in the DC Circuit.

[00:18:51] Speaker 02:
And what's your understanding of the scope then of genteel or gentile?

[00:18:56] Speaker 01:
Now, genteel provides several factors to consider, and candidly, one of them is one of the ones that you've pointed out here, which is that this law only applies to one side out of the two sides in the criminal case.

[00:19:09] Speaker 01:
That's a factor, and it's a factor that in ways in favor of my friends here.

[00:19:12] Speaker 01:
I certainly can't get away from that.

[00:19:14] Speaker 01:
But there are multiple factors in the genteel analysis, and so I think the court's job under that case is to look at all those factors and balance them and not to give too much weight to any one factor over the others.

[00:19:25] Speaker 04:
But if we conclude that this is not a regulation of speech, we don't engage in a genteel balancing.

[00:19:33] Speaker 01:
Absolutely.

[00:19:34] Speaker 01:
Yes, Your Honor.

[00:19:35] Speaker 04:
It's only if we conclude that it is a regulation of speech.

[00:19:38] Speaker 01:
That's correct.

[00:19:39] Speaker 01:
Yes.

[00:19:39] Speaker 01:
I think the conduct versus speech question is preliminary.

[00:19:41] Speaker 00:
In one sentence, what is the conduct that's being regulated?

[00:19:47] Speaker 01:
I mean, in just a few words, it's the practice of law.

[00:19:50] Speaker 00:
I'm sorry?

[00:19:50] Speaker 01:
The practice of law, and in particular, the representation of a particular client in a particular case.

[00:19:55] Speaker 00:
I see.

[00:19:56] Speaker 00:
So the contract is not the contract.

[00:19:58] Speaker 00:
The contract is being regulated as the practice of law.

[00:20:01] Speaker 01:
Well, I think the contact is happening in the context of the practice of law.

[00:20:05] Speaker 00:
But we know that the practice of law.

[00:20:06] Speaker 00:
I mean, Jen Chilick was about the practice of law.

[00:20:09] Speaker 00:
I mean, I was frankly surprised.

[00:20:11] Speaker 00:
But it turns out that there is a fair amount of support for the proposition that the practice of law, because it entails speech, is protected by the First Amendment, even when it's representational.

[00:20:23] Speaker 00:
And that's why Jen Till said, well, but that is a strong interest, which you can balance.

[00:20:34] Speaker 00:
But they didn't say this wasn't the practice of law.

[00:20:36] Speaker 01:
Well, and I do think it is the combination in some ways of the practice of law and the fact that the conduct here includes just the mere contact with the victims.

[00:20:44] Speaker 01:
So the practice of law can be speech.

[00:20:46] Speaker 01:
I mean, genteel is a speech case.

[00:20:48] Speaker 00:
But then when you say it's just the mere contact, then I go back to where I was, which it isn't really just the mere contact.

[00:20:54] Speaker 00:
It could be under the statute.

[00:20:56] Speaker 00:
You can revise the way you enforce it so that it's only, you know, there's a letter that is sent through

[00:21:03] Speaker 00:
the prosecutor's office and it's just about who's sending the letter and that might well be contact but that's not the way it's administered.

[00:21:10] Speaker 01:
Yeah and that's I think we just have a different reading of how the statute applies and it has applied to this as to legal analysis here and I see I'm over my time so I don't want to go too long.

[00:21:19] Speaker 01:
No, take your time.

[00:21:22] Speaker 01:
In our view, it really does just regulate that initial contact.

[00:21:26] Speaker 01:
Certainly, defense counsel might want to deliver a particular message, and it's not going to be delivered, given how this plays out in practice.

[00:21:32] Speaker 01:
But the only way that the defense counsel is not going to be able to deliver their message to a victim is if the victim does not want to have contact with defense counsel.

[00:21:40] Speaker 00:
If the victim- Well, after getting this letter, which tries to talk them out of it.

[00:21:45] Speaker 01:
And again, I think you and I are going to have a different reading of whether the letters are trying to talk victims out of it.

[00:21:52] Speaker 01:
The letters can be fairly read as just plainly providing notice of the victim's rights, which are substantial in Arizona and constitutional.

[00:22:00] Speaker 02:
Mr. Samuels, I guess back to this threshold then of whether it's speech at all.

[00:22:05] Speaker 02:
I guess I'm trying to figure out the statute uses this term contact, but we're talking about speech.

[00:22:13] Speaker 02:
The consent is even handed, but do you have any other case where

[00:22:18] Speaker 02:
two sides, two different viewpoints on a particular subject matter.

[00:22:26] Speaker 02:
One has to go through the other to communicate that.

[00:22:30] Speaker 01:
I don't, Your Honor.

[00:22:30] Speaker 01:
I think this is a pretty unique case.

[00:22:32] Speaker 04:
Is it?

[00:22:34] Speaker 04:
It seems to me, listening to Judge Tom Thorn's question, that in the ordinary case, you can't talk to the party on the other side without the lawyer's permission.

[00:22:44] Speaker 01:
Well, I think that's right.

[00:22:45] Speaker 04:
And I think the closest analogy you can get to... Now, I'm not sure the victim is on the other side here, but there's lots of examples where professionals are prevented from talking to someone without going to the court first, aren't there?

[00:22:57] Speaker 01:
Certainly.

[00:22:58] Speaker 01:
I think in Rule 4, the 4.2 context is obviously the closest example.

[00:23:02] Speaker 02:
But that's reciprocal.

[00:23:04] Speaker 02:
I mean, that both sides.

[00:23:06] Speaker 00:
Certainly.

[00:23:06] Speaker 00:
It's therefore not identity-based.

[00:23:07] Speaker 00:
I mean, so it wouldn't violate the First Amendment.

[00:23:10] Speaker 01:
Yes.

[00:23:10] Speaker 01:
Yeah.

[00:23:11] Speaker 01:
But I think it is one helpful lens through which to see this, which is, imagine the victim is represented, which is not common, but does happen a little more commonly in Arizona, I think, than in a lot of systems.

[00:23:21] Speaker 01:
So if the victim is represented, everyone agrees that you have this single point of contact that everybody's going to have to go through.

[00:23:28] Speaker 01:
The difference there, obviously, is that the prosecutor is also going to have to go through that.

[00:23:31] Speaker 00:
And this is another problem with it, maybe less of a First Amendment problem than a due process problem.

[00:23:39] Speaker 00:
Even in that instance, as I understand it, the letter has to go through the prosecutor.

[00:23:46] Speaker 01:
Even in the instance when the victim is represented?

[00:23:50] Speaker 01:
Yes.

[00:23:50] Speaker 01:
I think there's some ambiguity in the statute.

[00:23:53] Speaker 00:
Is there ambiguity in the statute?

[00:23:54] Speaker 00:
Why?

[00:23:56] Speaker 01:
I'm not sure the statute speaks directly to the question of whether defense counsel needs to go through the prosecutor when the victim is represented.

[00:24:02] Speaker 01:
But I can understand why defense counsel typically does that.

[00:24:04] Speaker 01:
Given the ambiguity, I understand their caution in that regard.

[00:24:07] Speaker 00:
So I mean, the other problem here is that not only is it one-sided, but it also gives the prosecutor information that isn't reciprocal, i.e.

[00:24:19] Speaker 00:
that the defense wants is going to get.

[00:24:22] Speaker 00:
Even if it succeeds and they do get to talk to the victim, they now know that they've talked to the victim, which with regard to witnesses in general, the prosecution is talking to the defense does not find out.

[00:24:37] Speaker 01:
To the extent that that's true, and it may be to some extent, that really gets more to a defendant's rights, to Sixth Amendment rights.

[00:24:44] Speaker 01:
I don't think that has much impact at all in the analysis here, where we're just talking about the personal First Amendment rights of defense counsel.

[00:24:51] Speaker 02:
Okay, we didn't do well at leaving you five minutes for rebuttal.

[00:24:55] Speaker 02:
We'll put three on the board and see where it goes from there.

[00:24:57] Speaker 01:
Thank you very much, Your Honor.

[00:24:58] Speaker 02:
Thank you.

[00:25:01] Speaker 02:
Mr. Keenan.

[00:25:10] Speaker 03:
May it please the court, Jared Keenan on behalf of Plaintiff of Pellies.

[00:25:14] Speaker 03:
With me today is Kathy Brody.

[00:25:16] Speaker 03:
I'd like to pick up with this conduct versus speech discussion that Your Honors had just recently with opposing counsel.

[00:25:23] Speaker 03:
As the district court correctly noted, this regulation, the victim contact prohibition, cannot, the conduct at issue that is regulating, cannot be the practice of law because as Your Honors pointed out, it doesn't

[00:25:37] Speaker 03:
apply to both prosecutors and defense attorneys.

[00:25:39] Speaker 03:
And there's other support for that in the record and in the rules.

[00:25:42] Speaker 02:
Let me jump in there and your framing of this as a victim contact prohibition, because that strikes me as a potential distinction from the cases.

[00:25:51] Speaker 02:
This is kind of a hard case to categorize.

[00:25:54] Speaker 02:
It's not a prohibition because whatever message the defense attorney intends to communicate, if the victim consents to either prosecution or defense, that message can be delivered.

[00:26:07] Speaker 02:
It's not compelled speech in the way of, you know, we have Turner broadcasting, we have Sorrell, we have Citizens United.

[00:26:13] Speaker 02:
Those all involve either mandates or prohibitions.

[00:26:16] Speaker 02:
The best I could do to find

[00:26:19] Speaker 02:
any case that dealt with this kind of consent procedure is Hill versus Colorado.

[00:26:23] Speaker 02:
Um, and there, um, it was, uh, not content, um, based perhaps, but it did apply to advocacy, um, solicitation, counseling, et cetera.

[00:26:35] Speaker 02:
Um, what are we supposed to do with the fact that this isn't a prohibition?

[00:26:38] Speaker 02:
The defense counsel can say what they want if the victim consents and the prosecution's under that same, um, condition.

[00:26:45] Speaker 03:
Well, I take some, I take your point.

[00:26:49] Speaker 03:
However, I think that the facts below sort of undermine this argument that the government made in its briefing about how once a victim agrees to contact that the defense attorney can talk about whatever he or she wants.

[00:27:03] Speaker 03:
The district court pointed out that in practice,

[00:27:06] Speaker 03:
this prohibition does in fact prevent all contact from, from, uh, between victims and defense attorneys.

[00:27:14] Speaker 03:
And if you look at the, um, if you look at the letters, this is an as applied case.

[00:27:18] Speaker 04:
This is not an as applied correct.

[00:27:20] Speaker 04:
This is a facial attack.

[00:27:21] Speaker 03:
That's correct.

[00:27:22] Speaker 04:
So the fact that no victim, assuming that the record bears that out, which I don't think it does, that no victim has ever consented to, to, to talk to defense attorneys.

[00:27:33] Speaker 04:
What difference does that make?

[00:27:35] Speaker 03:
That actually does not make a difference, Your Honor.

[00:27:37] Speaker 03:
And I guess what I was trying to get at is, if you look at the letters that are sent by the Attorney General's office and others that are in the record, all of those talk about the right of a victim to either consent to or not consent to an interview, which in Arizona is a very specific thing.

[00:27:54] Speaker 03:
It involves a formal process where the prosecutor's present.

[00:27:59] Speaker 04:
But you're not attacking the letter here.

[00:28:02] Speaker 04:
You're not attacking it as applied.

[00:28:04] Speaker 04:
What you're saying is this statute cannot have any constitutional application because it abridges you, your defense attorneys, right to speech.

[00:28:15] Speaker 04:
So I guess, let me pose it for you a different way.

[00:28:19] Speaker 04:
What if the statute applied both to prosecutors and defense counsel?

[00:28:23] Speaker 04:
Exactly the same way.

[00:28:25] Speaker 04:
Would it abridge any First Amendment rights?

[00:28:28] Speaker 03:
It may, although it would be a much different statute.

[00:28:31] Speaker 04:
I just gave you a different statute, so I knew that.

[00:28:36] Speaker 04:
Why would a bridge, your First Amendment rights, if both sides were prohibited from making any contact with a victim except through the same procedure that defense counsel now have to use?

[00:28:49] Speaker 03:
In that situation, Your Honor, it likely would be a much harder question because, again... Well, I meant it to be a harder question.

[00:28:57] Speaker 04:
So, tell me why... Yes.

[00:28:58] Speaker 04:
Tell me why... Actually, in my view, your entire argument in this case is we're being treated differently than the prosecutors.

[00:29:05] Speaker 04:
So, I'm saying if you were treated the same, would you have a First Amendment problem?

[00:29:09] Speaker 03:
No.

[00:29:10] Speaker 03:
Then it might actually be considered a regulation of conduct.

[00:29:13] Speaker 03:
And that's the way that when victims are represented by their own counsel, that's how that plays out.

[00:29:18] Speaker 00:
It would be the same rule, so it's either content or it isn't content.

[00:29:22] Speaker 00:
The difference would have to be that it's not identity discriminatory or content discriminatory on the substance, but it can't be that it's content one way and not content the other way.

[00:29:35] Speaker 00:
If it's content, it's the same thing.

[00:29:36] Speaker 03:
If it's speech, it's the same thing.

[00:29:40] Speaker 03:
statute applied to both prosecutors and defense attorneys, it might not rise to the level of a content-based and viewpoint-based... Right, but not because it's conduct of one sense or not.

[00:29:49] Speaker 03:
Correct.

[00:29:50] Speaker 00:
I think you're right.

[00:29:53] Speaker 00:
Here is my question.

[00:29:57] Speaker 00:
What exactly speech are you challenging?

[00:30:00] Speaker 00:
Is it the talking to the victim to ask them to have the interview, or is it the interview?

[00:30:09] Speaker 00:
That's the problem.

[00:30:11] Speaker 03:
The problem is well prior to the interview itself.

[00:30:14] Speaker 03:
Because this statute, again, is so broad and so sweeping that it limits contact, all contact, between defense attorneys and victims.

[00:30:20] Speaker 00:
I want to know what the speech is.

[00:30:21] Speaker 00:
I mean, in terms of the speech kind of thing, what speech are you saying is being suppressed?

[00:30:27] Speaker 03:
So there are many examples of the types of speech that defense counsel wants to have with crime victims in the record.

[00:30:35] Speaker 03:
And so this statute prohibits all of those from happening.

[00:30:38] Speaker 00:
The problem is that the district court opinion and your brief act as if, and this is what we were saying earlier, they were banning the interviews.

[00:30:47] Speaker 00:
They're not banning the interviews.

[00:30:49] Speaker 00:
They are making a precondition to the interviews, which is to have the

[00:30:56] Speaker 00:
consent and have it go through the prosecutor.

[00:30:59] Speaker 00:
And I'm not sure that it seems to me that we do decide the facial challenge on the record.

[00:31:05] Speaker 00:
And the record includes the letter, so the way it's being administered.

[00:31:11] Speaker 00:
So what exact speech are you claiming is being suppressed?

[00:31:15] Speaker 03:
And that's where I was getting at with the formality of these interviews.

[00:31:19] Speaker 03:
These interviews include questions about the facts and circumstances.

[00:31:22] Speaker 00:
But you were in challenging.

[00:31:23] Speaker 00:
I did not understand you to be challenging.

[00:31:26] Speaker 00:
the provision that says that the attorney general can come to the interview.

[00:31:30] Speaker 00:
Is that part of the challenge?

[00:31:31] Speaker 03:
No, no, no.

[00:31:32] Speaker 03:
But what we are challenging is that a defense attorney can't go up to a crime victim and say, excuse me, would you like to have a conversation with me?

[00:31:40] Speaker 00:
So the speech that you're challenging is that you can't go up and say that.

[00:31:46] Speaker 00:
Not what happens afterwards.

[00:31:48] Speaker 00:
Is that right or wrong?

[00:31:50] Speaker 04:
That's part of the speech, yes.

[00:31:51] Speaker 04:
But you agree the statute, to the extent it gives the crime victim the right, absolute right to refuse to speak to defense counsel, absent a court order, is constitutional?

[00:32:01] Speaker 03:
That's correct.

[00:32:02] Speaker 04:
Okay.

[00:32:03] Speaker 04:
So then Judge Berzon must be correct.

[00:32:07] Speaker 04:
that what you're attacking is your inability to go directly to the victim and ask whether or not they will consent to speak to defense counsel.

[00:32:17] Speaker 03:
Yes, it's just broader.

[00:32:19] Speaker 03:
Earlier we... Was it broader or no?

[00:32:20] Speaker 00:
It was broader.

[00:32:21] Speaker 00:
I don't understand what's broader about it.

[00:32:23] Speaker 00:
I mean, anything that happens afterwards... I mean, you may be able to wrap in the way in which that is happening.

[00:32:30] Speaker 00:
And that may be a question of what can you reach in a facial challenge.

[00:32:35] Speaker 00:
But as to on the ground, the way it's happening is by the...

[00:32:40] Speaker 00:
prosecutors writing a letter, which I characterize as a discouraging letter, instead of just passing along your letter, which as far as—suppose the statute said—or suppose the statute were interpreted, because I think it could be, to simply require that you write a letter to the—that you can't go up and knock on the door.

[00:33:04] Speaker 00:
You have to write a letter, and then the prosecutor will send that letter on.

[00:33:10] Speaker 00:
Would that have the same problem?

[00:33:12] Speaker 00:
Would that be a First Amendment problem?

[00:33:14] Speaker 03:
It would be far less of a problem because then the defense attorney would be able to at least convey its intended message to the victim directly.

[00:33:23] Speaker 03:
Well, not directly.

[00:33:24] Speaker 03:
They would still have to go through the prosecutor, but they would be able to at least get their letter in the hands of the victim.

[00:33:28] Speaker 03:
There may still be some First Amendment problems with that, but it would be different ones.

[00:33:32] Speaker 00:
What's the problem then?

[00:33:33] Speaker 00:
Because then it would seem to be about conduct in the sense of who's going to send the letter.

[00:33:39] Speaker 00:
Is that a First Amendment problem, who's sending the letter?

[00:33:42] Speaker 03:
No, that is not.

[00:33:43] Speaker 03:
But earlier there was a question about prosecutors having unfettered access to the victims, and opposing counsels said, well, in the normal course, yeah, anyone who goes up to someone and asks to speak with them, that person can refuse to speak with them, and that would sort of cut off the communication.

[00:33:56] Speaker 03:
That's what defense attorneys want to do as well.

[00:33:59] Speaker 03:
They may want to send a letter to a crime victim in their own words,

[00:34:03] Speaker 03:
But they also may want to go up to them and say, hi, will you meet me at a coffee shop and have a conversation about the facts and circumstances of the case?

[00:34:11] Speaker 04:
Why can't the state?

[00:34:13] Speaker 04:
See, I keep coming back.

[00:34:14] Speaker 04:
I think you may have a fine equal protection case.

[00:34:18] Speaker 04:
You may even have a Sixth Amendment case.

[00:34:20] Speaker 04:
But are you telling me the state of Arizona lacks the ability to say, forget the machinery, defense counsel may not directly contact the victim?

[00:34:32] Speaker 04:
without the victim's advanced consent.

[00:34:37] Speaker 03:
Well, I think advanced consent is, I'm confused about that.

[00:34:40] Speaker 03:
Very easy.

[00:34:42] Speaker 04:
I'm writing a different statute so you don't need to tell me it's a different one.

[00:34:45] Speaker 04:
The statute says, you want to talk to a victim?

[00:34:48] Speaker 04:
You must send a letter to the victim that says, I would like to talk to you.

[00:34:52] Speaker 04:
I must remind you that under Arizona law, you have the absolute right and then

[00:34:57] Speaker 04:
accurately represent the law.

[00:34:59] Speaker 04:
That's the obligation that it imposes on defense counsel.

[00:35:02] Speaker 00:
You have an absolute, just the right.

[00:35:05] Speaker 04:
It's an absolute right.

[00:35:07] Speaker 04:
I mean, there's no condition under which you need exercise it, but Judge Bereson and I could argue about that later.

[00:35:14] Speaker 04:
My question is, would that violate your First Amendment rights?

[00:35:18] Speaker 03:
It may.

[00:35:20] Speaker 03:
Well, may doesn't help us.

[00:35:22] Speaker 03:
It either does or doesn't.

[00:35:23] Speaker 03:
Tell me what your view is.

[00:35:24] Speaker 03:
It may because it would compel particular speech.

[00:35:27] Speaker 04:
Yeah, it would say to defense counsel, the way you get consent to talk to a victim is you write them a letter, and let's assume for a moment that the letter the advocate sends is not one-sided.

[00:35:39] Speaker 04:
You write a letter that says, you know, I would like to talk to you.

[00:35:43] Speaker 04:
Here are your rights under Arizona law.

[00:35:45] Speaker 04:
And it accurately says what your rights under Arizona law are.

[00:35:49] Speaker 04:
Does that violate the First Amendment?

[00:35:51] Speaker 03:
Again, it may for, uh, compelled speech grounds.

[00:35:54] Speaker 03:
It certainly would be a much better situation.

[00:35:57] Speaker 04:
Cause you're compelled.

[00:35:58] Speaker 04:
You're not, you're compelled to say that rather than I'd like to talk to you because I think, uh, because I think I can derive from you evidence that might help my counsel at trial, my witness at trial.

[00:36:09] Speaker 03:
Right.

[00:36:10] Speaker 03:
Well, one of the things that came out in the testimony, if you look through the record is, is the report that defense counsel or investigators can build with crime victims in order to both.

[00:36:19] Speaker 04:
No, I understand why it's better for you.

[00:36:22] Speaker 04:
Look, I think it probably violates the 14th amendment.

[00:36:26] Speaker 04:
It may violate the sixth amendment.

[00:36:28] Speaker 04:
What I'm having difficulty with and why all these questions are coming out.

[00:36:32] Speaker 04:
is why it violates the First Amendment.

[00:36:35] Speaker 04:
And it seems to me your position has to be that the state lacks the ability to tell you, however you want to contact a victim, you must tell that victim simply, you don't have to talk to me, but I'd like to contact you.

[00:36:49] Speaker 02:
And if I could add maybe a clarifying amendment to Judge Horowitz's question, at least clarifying for me.

[00:36:56] Speaker 02:
Um, alright, let's distinguish here between the scope of the First Amendment and the scrutiny that applies.

[00:37:00] Speaker 02:
There are all sorts of stuff, but I mean, of course the bar cases, the bar solicitation cases, all those lawyer solicitation cases, they didn't violate the First Amendment, but they're analyzed as speech, commercial speech or other things.

[00:37:13] Speaker 02:
So, so

[00:37:15] Speaker 02:
When you answer this, tell me whether you're talking about whether it's within the scope of the First Amendment or whether it might just satisfy whatever scrutiny because it's viewpoint content neutral under the First Amendment, but the First Amendment applies because it's speech.

[00:37:29] Speaker 03:
Yes, I agree with that.

[00:37:31] Speaker 03:
So what I was trying to articulate is that the First Amendment certainly applies to all these situations, even the hypothetical statutes as Judge Hurwitz pointed out.

[00:37:39] Speaker 03:
The question becomes what level of scrutiny applies and whether or not that scrutiny dictates that the statute is constitutional or unconstitutional under the First Amendment.

[00:37:47] Speaker 04:
So let's assume that, and I think you agree with this, that the state has a sufficient interest to want the victim to know in advance that they don't need to talk to the defense counsel.

[00:37:58] Speaker 04:
And so if the statute were the way I described it, you'd say, yeah, it might implicate the First Amendment, but the state's interest overcomes it.

[00:38:07] Speaker 04:
Why is it a different analysis under this circumstance?

[00:38:10] Speaker 03:
different analysis for several reasons.

[00:38:13] Speaker 03:
First off, again, this statute is much broader than that and much more sweeping, prohibiting all initial contact.

[00:38:20] Speaker 04:
Yeah, I know you say that, but look, this is not a case about you wanting to go to their door to get their vote.

[00:38:27] Speaker 04:
I mean, if we rule for the state and hold you can do that, you're going to go home and say, I lost the case.

[00:38:33] Speaker 04:
This is a case in which your entire case is built around, I need to talk to these people because I'm defending somebody in court.

[00:38:40] Speaker 04:
So focus on that aspect.

[00:38:44] Speaker 03:
On the knocking the door example, let's change it up just slightly.

[00:38:48] Speaker 03:
If a defense attorney were to go around in a neighborhood that the defense attorney knew a victim lived in and was going to knock on every door to explain their view of the death penalty, for example, which is clearly corporal.

[00:38:58] Speaker 03:
Look, this is silly.

[00:38:59] Speaker 04:
This is really a silly example.

[00:39:01] Speaker 04:
That's not why you're attacking the statute.

[00:39:04] Speaker 04:
You're attacking the statute because it makes your job difficult.

[00:39:08] Speaker 04:
It makes it difficult for you to talk to victims and obtain information that would be useful in defense of your clients.

[00:39:16] Speaker 04:
So, I mean, if we interpret the statute to say, okay, it's perfectly constitutional, but you can go door to door in the neighborhood, although when you knock on the door of the victim, you have to tell them, by the way, you're the only person in the neighborhood who has a state constitutional right not to talk to me.

[00:39:33] Speaker 04:
you will gain nothing.

[00:39:35] Speaker 04:
So that's why I'm trying to focus on what the First Amendment implications of preventing you from talking to victims for the purposes of conducting the defense of your clients are.

[00:39:48] Speaker 03:
Well, the speech at issue doesn't really change the analysis.

[00:39:53] Speaker 03:
Let's assume that it changes mine.

[00:39:55] Speaker 04:
Let's assume that it's important to me.

[00:39:57] Speaker 04:
I want to know why in the course of defending your clients,

[00:40:01] Speaker 04:
You have a First Amendment right to say whatever you want to to a victim to obtain their consent and you have the right to say it directly.

[00:40:08] Speaker 04:
Tell me why.

[00:40:12] Speaker 03:
Just as the district found, this statute attacks speech as speech, and it doesn't matter necessarily.

[00:40:18] Speaker 03:
The content of that speech, it is preventing one viewpoint, the viewpoint of a criminal defense attorney from speaking with crime victims and only criminal defense attorneys.

[00:40:28] Speaker 00:
Let's go back to what it is that is being precluded.

[00:40:30] Speaker 00:
It is not the representation, and it's not the interview itself.

[00:40:37] Speaker 00:
It is the whatever is said to initiate the contact.

[00:40:41] Speaker 00:
Is that, I mean do you agree with that?

[00:40:43] Speaker 03:
That is part of it, yes.

[00:40:44] Speaker 00:
And your brief doesn't, what's the rest of it?

[00:40:46] Speaker 03:
The rest of it is everything that the defense attorney wishes to convey after the fact.

[00:40:51] Speaker 04:
But there's no, once you get consent you can, you agree.

[00:40:54] Speaker 04:
Once you get consent there's nothing in this statute that's content, that prohibits any content.

[00:41:01] Speaker 04:
Arguably no, but that's not.

[00:41:03] Speaker 04:
Arguably and facially no.

[00:41:04] Speaker 04:
Okay, so let's get back, what's troubling

[00:41:08] Speaker 04:
me and I think Judge Berzon's questions are aimed at the same point, is that this is a First Amendment attack.

[00:41:15] Speaker 04:
And what you're prohibited from doing here is contacting the victim to obtain consent except through a specified procedure.

[00:41:24] Speaker 04:
So you can't do it directly.

[00:41:25] Speaker 04:
You have to do it through an intermediary.

[00:41:27] Speaker 04:
In this case, it's the victim's advocate.

[00:41:29] Speaker 04:
But the statute, I suppose, would allow the prosecutor just to do it without the victim's advocate.

[00:41:35] Speaker 04:
Why is that a First Amendment problem?

[00:41:37] Speaker 04:
as opposed to something that burdens your ability to defend someone, as opposed to something that treats you unfairly vis-a-vis prosecutors.

[00:41:47] Speaker 04:
Why is it a First Amendment problem?

[00:41:50] Speaker 04:
For me, that's the critical part of the case.

[00:41:51] Speaker 04:
So tell me why that's a First Amendment problem.

[00:41:55] Speaker 03:
If I understand the question correctly, the premise is that once the victim consents to having a discussion, a criminal offense attorney can have an interview with the crime victim.

[00:42:09] Speaker 03:
But the problem is that those types of interviews are pretrial interviews that focus on the facts and circumstances of the individual case and do not allow for additional conversation or content.

[00:42:22] Speaker 04:
Where do you see that in the statute?

[00:42:24] Speaker 03:
It was not in the statute.

[00:42:24] Speaker 04:
Well, you're attacking the statute.

[00:42:26] Speaker 04:
If what you were attacking was the state's view that once you have consent, you ask too many questions, we'd have a different case.

[00:42:35] Speaker 04:
You're attacking the statute.

[00:42:37] Speaker 04:
And it seems to me the problem with the statute is it prevents you from getting consent the way the prosecutor gets consent, which is they just call up and say, do you want to talk to me?

[00:42:48] Speaker 04:
So tell me why that's a First Amendment problem.

[00:42:52] Speaker 03:
because you are required to speak through a government script in order to attempt to get that.

[00:42:58] Speaker 00:
But so that's the right focus now.

[00:43:00] Speaker 00:
Now you're focusing on what is wrong with the regulation of the way the consent is obtained.

[00:43:08] Speaker 00:
Now that also isn't in the statute, that it has to be through a government script, but it's practice it is.

[00:43:14] Speaker 00:
So do we reach that on a facial attack?

[00:43:17] Speaker 00:
I think probably we do, but that's not in the statute either, exactly.

[00:43:21] Speaker 03:
Right, but the subsection of the statute does, as opposing counsel pointed out, does not require the prosecutor to present anything from the defense team to the victim itself.

[00:43:31] Speaker 00:
So if, for example, the defense attorney- It doesn't require them, but it would allow them.

[00:43:34] Speaker 00:
And if they want you to get out of this pickle, they might, in fact, decide to do it that way, except they don't want to.

[00:43:41] Speaker 00:
But if they did it that way, would it be a problem?

[00:43:45] Speaker 03:
If they were required to present a letter from the defense counsel- Not required, but if what they actually did

[00:43:51] Speaker 00:
was to say, all right, you give me the letter that you want, your initial contact letter, and we will send it on.

[00:43:57] Speaker 00:
And maybe we'll, all right, we won't make you say that there is no obligation, but we'll put in another letter that's, or we'll have to, the next day send a letter saying, by the way, you don't have to consent.

[00:44:12] Speaker 00:
We won't make you say it, so we'll take that out of the case.

[00:44:16] Speaker 00:
Is that OK?

[00:44:17] Speaker 03:
No.

[00:44:17] Speaker 03:
I think that that still is a valid facial challenge because the statute doesn't require them to do that.

[00:44:22] Speaker 03:
And so one prosecuting agency might actually send the letter from the defense counsel.

[00:44:28] Speaker 04:
That's actually an as-applied challenge if you're saying it could be constitutionally applied, but some people won't do it that way.

[00:44:36] Speaker 02:
Let's take it at the...

[00:44:38] Speaker 02:
try to strip it down to the bare bones here.

[00:44:41] Speaker 02:
The statute says only initiate contact with the victim through the prosecutor's office.

[00:44:46] Speaker 02:
So let's say instead of the current mechanism, this is a facial challenge, prosecutor has a website or a standard form.

[00:44:55] Speaker 02:
No persons, no other words.

[00:44:57] Speaker 02:
A survey goes out to all the victims, statutory victims, much broader set than just the victim.

[00:45:04] Speaker 02:
And it's just, you know, click yes or no.

[00:45:07] Speaker 02:
And the prosecutor gets the, gets, gets the, the same, um, the prosecutor sends it out, comes from the prosecutor's email, click yes or no, goes to the prosecutor's office, goes to the defense attorney's office, they do that, done.

[00:45:20] Speaker 02:
Is that a speech problem and why?

[00:45:24] Speaker 03:
Yes, because again, it's requiring

[00:45:26] Speaker 03:
the defense attorney's speech to go through the conduit, the government conduit, the government's website.

[00:45:30] Speaker 04:
Well, but here's the problem.

[00:45:31] Speaker 04:
If you think that it is legal to prohibit direct contact between defense attorneys and victims, and I think you've said it is, correct?

[00:45:42] Speaker 04:
Well, I think, no, I don't think it is.

[00:45:43] Speaker 04:
So you're attacking, not only your attack would invalidate all, so you think that direct contact is required by the First Amendment?

[00:45:56] Speaker 04:
I want to contact you through a letter.

[00:46:03] Speaker 04:
I don't want it, you know, and I'm not going to tell you in this letter that you have the right not to contact me.

[00:46:09] Speaker 04:
So it seems to me the constitutional right that's given in Arizona to victims is not to be contacted by defense lawyers, whether by letter or otherwise, in the absence of the victim's consent.

[00:46:21] Speaker 04:
And so I'm asking you, do you think it would be unconstitutional?

[00:46:27] Speaker 04:
It would be unconstitutional?

[00:46:29] Speaker 04:
It's unconstitutional simply because you can't send that letter directly to the victim?

[00:46:35] Speaker 03:
Yes, yes.

[00:46:36] Speaker 03:
But also, it would be unconstitutional.

[00:46:38] Speaker 03:
So then it would be on every other state's statute?

[00:46:41] Speaker 03:
That required advanced consent would be unconstitutional?

[00:46:44] Speaker 03:
No, no, no.

[00:46:45] Speaker 03:
Well, look, there are a lot of situations where people don't want people soliciting at their doorstep, and yet the government doesn't prevent those things because of the First Amendment.

[00:46:53] Speaker 03:
And this is a similar situation.

[00:46:55] Speaker 04:
We're asking— Well, but see, now what you're telling me is that the no-contact rule is unconstitutional.

[00:47:03] Speaker 04:
You're not worried who it's filtered through.

[00:47:05] Speaker 04:
You're not worried about the victim's advocate's letter.

[00:47:08] Speaker 04:
You just think that it's unconstitutional to prohibit you from directly contacting victims, correct?

[00:47:15] Speaker 04:
I'm saying it raises First Amendment issues, whether or not it drives it to a level... If it's constitutional, then I have a problem with... So I want to know, is that unconstitutional or not?

[00:47:25] Speaker 03:
Yes, I think the government preventing someone from going up to another person and asking if they want to have a discussion is unconstitutional.

[00:47:32] Speaker 03:
And that person can clearly say no, and that cuts off the conversation.

[00:47:35] Speaker 02:
And doesn't that turn on the interests rather than the fact that speech is involved?

[00:47:40] Speaker 02:
We're all talking about speech here.

[00:47:42] Speaker 02:
This is all First Amendment now.

[00:47:43] Speaker 02:
The battle goes now to the interest and the level of scrutiny, right?

[00:47:47] Speaker 03:
That is correct.

[00:47:48] Speaker 03:
Yes.

[00:47:49] Speaker 03:
And that's what I think... You can say more about that.

[00:47:51] Speaker 03:
Yes.

[00:47:51] Speaker 03:
And so I think that while the government likely has more of an interest in preventing direct contact with crime victims than someone who's not a crime victim, there's no evidence.

[00:48:04] Speaker 03:
If you look at the record below, this is after years of merits briefing, full pretrial discovery, and a trial on the merits.

[00:48:11] Speaker 03:
The government simply presented no evidence to support its interest in preventing this type of contact between defense attorneys

[00:48:17] Speaker 03:
and crime victims.

[00:48:19] Speaker 03:
And so to get to your question, it does come down to the level of scrutiny.

[00:48:24] Speaker 03:
This statute is, again, so broad and sweeping that it prohibits all contact from defense attorneys to crime victims, and that is a First Amendment problem and unconstitutional as your court ruled.

[00:48:39] Speaker 00:
I see that I'm... I'd like to ask the technical question that I asked here.

[00:48:46] Speaker 00:
opponent earlier, which is, given the standing rule in this case, ruling, what is actually before us?

[00:48:54] Speaker 00:
The earlier panel said that the rule of criminal procedure is broader.

[00:49:02] Speaker 00:
It states that the defense must communicate requests to interview a victim to the prosecutor, not the victim.

[00:49:10] Speaker 00:
And in contrast, the statute

[00:49:13] Speaker 00:
says that a defense attorney or investigator shall only initiate contact with the victim through the prosecutor's office.

[00:49:20] Speaker 00:
It's possible to contact a victim without requesting to interview them and thus violate without.

[00:49:26] Speaker 00:
So are we, why are we not have before us only the circumstances in which you're trying to contact a victim without requesting to interview them?

[00:49:35] Speaker 03:
I think that those circumstances are the vast majority of contact that defense attorneys want to have of crime victims.

[00:49:41] Speaker 00:
I think that's exactly wrong.

[00:49:42] Speaker 00:
I thought you just said you want to go up and knock on the door and ask them if you can interview them.

[00:49:47] Speaker 03:
No, not an interview.

[00:49:48] Speaker 03:
Not a formal interview.

[00:49:49] Speaker 03:
I think Rule 39 applies- It's a formal interview.

[00:49:51] Speaker 03:
It's an interview.

[00:49:53] Speaker 04:
You're saying Rule 39 only applies to formal interviews, but where do I get that from?

[00:49:59] Speaker 03:
Okay, so if you look at the rules of criminal procedure, interviews aren't really a thing.

[00:50:04] Speaker 03:
What you have a right to in Arizona is pre-trial depositions.

[00:50:07] Speaker 03:
And if witnesses refuse an interview... Right.

[00:50:12] Speaker 04:
Why don't we just use an interview?

[00:50:14] Speaker 04:
What I'm trying to figure out is why isn't an interview just used in its colloquial form, which is to say, I can't go to you and ask you questions.

[00:50:22] Speaker 03:
Well, because of this issue with pre-trial depositions, I think that in Arizona, and there's some case law to support this Arizona case law, right, that discusses an interview in this formal pre-trial process.

[00:50:37] Speaker 04:
I'm somewhat familiar with the rules.

[00:50:40] Speaker 04:
The Arizona case law says, if the victim refuses an interview, refuses to talk to you, then you can go to the court and say, I really need to talk to them and please order them to show up for a deposition.

[00:50:52] Speaker 04:
But it doesn't define the contents of interviews.

[00:50:58] Speaker 04:
It doesn't say, well, when you go to see the victim, you're limited to asking questions about X, Y, or Z. So I read the word interview in the rule, at least.

[00:51:07] Speaker 04:
It's just saying in the normal sense.

[00:51:11] Speaker 04:
I want to ask you some questions.

[00:51:14] Speaker 04:
And so I'm not sure why we should read it more broadly, I guess.

[00:51:18] Speaker 03:
I'm arguing that I would read the word interview in that scenario in rule 39 more narrowly.

[00:51:24] Speaker 04:
I guess you're reading it and saying, well, this means rule 39 interviews are a special sort of thing.

[00:51:34] Speaker 04:
And we want to do more than the special sort of thing.

[00:51:37] Speaker 04:
Is that what you're saying?

[00:51:38] Speaker 04:
That's right.

[00:51:39] Speaker 04:
OK.

[00:51:40] Speaker 04:
And I'm asking you, how do I get that out of the rule that just says you may not interview the victim?

[00:51:47] Speaker 03:
to be frank, I think that the rules are written in a confusing way.

[00:51:51] Speaker 03:
Because I don't think, see, what you have a right to, again, is a deposition, but victims have an absolute right.

[00:51:56] Speaker 04:
No, and I'm saying that deposition, the normal rules apply if you're asking irrelevant questions or somebody can object and the judge can order the victim not to answer.

[00:52:05] Speaker 04:
But I'm not sure why interview, you say narrowly, I say more broadly, but why I should read the word interview in the rule as narrowly as you

[00:52:14] Speaker 00:
I don't think you can, because it says you must communicate a request to interview a victim to the prosecutor, not the victim.

[00:52:21] Speaker 00:
If you were to do a deposition, you don't go to the victim either, you go to the court.

[00:52:28] Speaker 00:
And if you want to communicate the request for a deposition, you don't go to the prosecutor.

[00:52:36] Speaker 03:
Well, in practice, you... Okay, so the reason that is slightly different for victims than any other witness is because any other witness who refuses an interview, yes, refuses an interview, can be ordered to be deposed.

[00:52:47] Speaker 03:
So can victims.

[00:52:49] Speaker 03:
Well, victims have an additional right to refuse that deposition.

[00:52:52] Speaker 04:
And when they refuse that deposition... But the Arizona Supreme Court has said if they are percipient witnesses to the case, as opposed to just victims, the mother of the murdered guy,

[00:53:03] Speaker 04:
then they can be ordered to show up for depositions, not withstanding the constitutional provision.

[00:53:08] Speaker 03:
I practice as a public defender for years.

[00:53:11] Speaker 03:
I have never had a court order a victim for a pretrial interview, even if they're a recipient witness.

[00:53:18] Speaker 03:
It never happens in Arizona that I'm aware of.

[00:53:22] Speaker 03:
But the Supreme Court has said it's permitted under the Constitution.

[00:53:26] Speaker 04:
Maybe in rare circumstances?

[00:53:28] Speaker 04:
Well, no.

[00:53:29] Speaker 04:
I'm not asking you whether it happens or not.

[00:53:31] Speaker 04:
I don't have the record.

[00:53:32] Speaker 04:
Hasn't the Supreme Court said this provision, which is derived from the Constitution, does not prohibit a judge from ordering a deposition?

[00:53:42] Speaker 03:
I don't think that's accurate because of the further victims' rights.

[00:53:44] Speaker 04:
I'm not accurately representing what the Supreme Court has said, or I'm not actually representing what happens in practice.

[00:53:52] Speaker 03:
So I believe because the victim's rights statute allows victims to refuse a discovery request, that they are allowed to refuse any interview.

[00:54:02] Speaker 04:
And you think that the Arizona Supreme Court has not held that the statute and the Constitution don't prohibit judges from ordering the deposition of victims?

[00:54:13] Speaker 04:
Oh, they can.

[00:54:14] Speaker 04:
I'm saying.

[00:54:17] Speaker 04:
Just real straight.

[00:54:18] Speaker 04:
The Arizona Supreme Court has issued a decision on this point, has it not?

[00:54:21] Speaker 04:
Correct.

[00:54:22] Speaker 04:
And it has said, notwithstanding the language, whatever it seems to say, a court may order the deposition of a victim

[00:54:31] Speaker 04:
to the extent that they're a recipient witness.

[00:54:35] Speaker 02:
I'm not aware of that case.

[00:54:36] Speaker 02:
So you don't challenge rule 39.

[00:54:39] Speaker 02:
We have not challenged rule 39 in this litigation.

[00:54:41] Speaker 02:
Okay.

[00:54:41] Speaker 02:
So we're, as, as Judge Berzon had suggested, I think we're, we're kind of stuck reviewing.

[00:54:48] Speaker 02:
We've got a realm of speech.

[00:54:50] Speaker 02:
We got to subtract the rule 39 speech out of it, assuming it's speech, whatever, whatever rule 39 covers.

[00:54:56] Speaker 02:
That's not something we're reviewing because after the standing ruling, you've only got standing to challenge.

[00:55:01] Speaker 02:
whatever's left, which is general advocacy about capital punishment, other things, what's covered by the statute that isn't covered by Rule 39.

[00:55:11] Speaker 02:
Is that right?

[00:55:12] Speaker 03:
Yes, except there's one important distinction that I think gets glossed over when we're talking about Rule 39.

[00:55:19] Speaker 03:
Rule 39 doesn't say that you have to get permission or go to the prosecutor to interview a victim.

[00:55:27] Speaker 03:
It simply says to request an interview.

[00:55:29] Speaker 03:
And that's why I think it gets back to why we're talking about the formal interview process, because as the district court noted, defense attorneys want to talk about not just capital punishment, not just sort of justice issues.

[00:55:41] Speaker 02:
Why does that matter for the purpose of the First Amendment analysis, that distinction between the rule and the statute?

[00:55:46] Speaker 03:
Well, it's because the statute broadly prohibits all of that contact.

[00:55:51] Speaker 03:
They can't contact a victim to talk about death penalty, to talk about justice broadly, to talk about the system, to talk about the facts and circumstances of the case.

[00:55:59] Speaker 03:
It prevents all of that.

[00:56:01] Speaker 00:
It seems to me that the statute is not about that and that we could, or we could certify to the Arizona Supreme Court or something, the question of whether the statute actually applies to those kinds of

[00:56:16] Speaker 00:
contacts with the victim because we were told by the state that they don't regard it as doing so, and it seems pretty clear that's not what the statute's about.

[00:56:26] Speaker 00:
So if that's what you're resting on, and in large part you were, I mean, certainly the district court had a whole list of things that you couldn't say.

[00:56:37] Speaker 00:
First of all, you can't say them if you get consent, but second of all, it doesn't seem like that's what the statute's about.

[00:56:43] Speaker 00:
So is that what you're arresting on?

[00:56:47] Speaker 00:
So if that's where we are, that we are now going to decide only whether you can contact them to talk about the death penalty or justice in general, then we have a different case than we all thought we had.

[00:57:02] Speaker 00:
That's all we have, because the rest of it is backed out by the criminal procedural.

[00:57:10] Speaker 03:
No, again, I disagree with that analysis.

[00:57:14] Speaker 03:
I think that with the rule 39, what that backs out of this court's interest or view is that the formal interview process, to request a formal interview under the rules that discuss the deposition, right to a deposition.

[00:57:31] Speaker 00:
And it doesn't say deposition.

[00:57:33] Speaker 00:
And you don't get a deposition by going to the prosecutor.

[00:57:37] Speaker 00:
I just don't understand.

[00:57:38] Speaker 00:
It says interview.

[00:57:39] Speaker 03:
Right, but you also don't get a deposition if the witness agrees to a formal interview.

[00:57:45] Speaker 03:
That's true with… Well, it doesn't say formal.

[00:57:47] Speaker 03:
See, that's my problem.

[00:57:48] Speaker 04:
It doesn't say formal in the statute.

[00:57:50] Speaker 04:
You keep… The reason I keep using formal… You've now erected this aspect of Arizona criminal procedure that's not in the rules, which there are interviews and there are formal interviews.

[00:58:00] Speaker 04:
Well, the reason I use… I don't see that distinction.

[00:58:03] Speaker 04:
I'm not sure it makes any difference, but I don't see that distinction in the statute.

[00:58:07] Speaker 03:
I think the reason I'm using that word former interview is just to differentiate between something that, uh, that is done through the rules of criminal procedure pre-trial and the types of speech that the district court noted in its findings of facts that the defense attorney wants to speak to victims about.

[00:58:23] Speaker 00:
And I think that those things are very different.

[00:58:24] Speaker 00:
We have supplemental briefing on this question.

[00:58:26] Speaker 00:
I mean, that is what does rule 39 mean and what is in fact backed out of this case as a result?

[00:58:33] Speaker 03:
I don't think you need that.

[00:58:34] Speaker 03:
If you look at the district court's findings and facts, the district court noted from the trial evidence, again, that defense attorneys want to speak to crime victims about a whole host of issues.

[00:58:44] Speaker 03:
Right.

[00:58:44] Speaker 04:
Okay, so let me separate the world for a second because now I want to figure out what this case is actually about.

[00:58:50] Speaker 04:
You want to speak to them about the whole world, don't you?

[00:58:53] Speaker 04:
Correct.

[00:58:53] Speaker 04:
Including the case?

[00:58:54] Speaker 04:
That's right.

[00:58:55] Speaker 04:
Okay.

[00:58:58] Speaker 04:
What your argument is, well, is it okay to keep you from speaking to them about the case?

[00:59:05] Speaker 03:
No.

[00:59:07] Speaker 03:
It is not.

[00:59:07] Speaker 03:
It is not.

[00:59:08] Speaker 03:
Not through this mechanism.

[00:59:09] Speaker 03:
Not through this mechanism.

[00:59:10] Speaker 04:
Okay.

[00:59:10] Speaker 04:
Because it's okay.

[00:59:12] Speaker 04:
It's not okay because you were being treated differently than the prosecutor.

[00:59:17] Speaker 03:
That's part of it.

[00:59:18] Speaker 03:
I mean, that gets to why it's not a regulation of attorney conduct or the practice of law.

[00:59:23] Speaker 04:
It's a regulation of defense attorney conduct.

[00:59:24] Speaker 04:
It may be unconstitutional because it denies equal protection, but I'm just, I'm just trying to figure out why it is that you think this broad contact that you wish to make, to talk about things other than the case.

[00:59:39] Speaker 04:
And by the way, I think talking to a victim in a capital case about her view of capital punishment,

[00:59:44] Speaker 04:
is talking about the case because that victim has a right to come to court and tell the judge what their view of the case is.

[00:59:55] Speaker 04:
So I'm trying to figure out here what the core of the speech you're really complaining about is talking about the case, correct?

[01:00:05] Speaker 03:
If you define that so broadly as to include discussions about the death penalty, discussions about... Discussions about the death penalty in a case where the victim was murdered.

[01:00:15] Speaker 03:
Yes, it could also be discussions about restorative justice, about what the justice system means, what punishment means.

[01:00:22] Speaker 04:
Okay, so now I'll get back to Judge Berzon's question.

[01:00:26] Speaker 04:
The state says, we don't think the statute subjects you to any discipline for that.

[01:00:31] Speaker 04:
It's the potential of the discipline that got you standing.

[01:00:34] Speaker 04:
And so if that's what you think makes the statute over broad, in other words, what if we were to say, look, it's fine as to talking about the case.

[01:00:44] Speaker 04:
But if to the extent it prevents you from knocking on the door and asking them whether or not they want to buy Girl Scout cookies, it's probably over broad.

[01:00:53] Speaker 04:
What do we do with that?

[01:00:54] Speaker 04:
Do we send that issue to the Arizona Supreme Court and ask them whether it really forbids that conduct?

[01:01:00] Speaker 04:
Or would you really care?

[01:01:01] Speaker 03:
I think two things.

[01:01:03] Speaker 04:
First, I think the state bar does think that that type of conduct... No, the state bar has never disciplined... I've looked at this record in great detail.

[01:01:10] Speaker 04:
The state bar has never disciplined anybody for any of your parade of horribles.

[01:01:15] Speaker 04:
Correct?

[01:01:16] Speaker 04:
No, that is not true.

[01:01:17] Speaker 04:
The record indicated that... The record shows that attorneys have been disciplined for inadvertently contacting victims about other topics?

[01:01:26] Speaker 03:
No, sorry.

[01:01:27] Speaker 03:
The record showed that attorneys were disciplined for contacting victims, and the record showed that at least one attorney was referred to the bar for inadvertent contact.

[01:01:36] Speaker 03:
For contacting victims?

[01:01:37] Speaker 03:
Correct.

[01:01:38] Speaker 03:
Was he disciplined?

[01:01:39] Speaker 03:
In the inadvertent case, no.

[01:01:43] Speaker 03:
But inadvertent contact is not necessarily something, is not what we're seeking here.

[01:01:49] Speaker 03:
What we're discussing is that this statute prevents a world of conversations or contact or speech that defense attorneys want to have with crime victims.

[01:02:00] Speaker 03:
It prohibits all of that.

[01:02:01] Speaker 02:
Mr. Keenan, why wouldn't it, would it be equally problematic to apply it to a defendant?

[01:02:11] Speaker 00:
That was my next question, Chip.

[01:02:13] Speaker 03:
It might be.

[01:02:14] Speaker 03:
That's not the case we had before us.

[01:02:16] Speaker 03:
And I would say that the state's interests may be stronger in that situation.

[01:02:21] Speaker 03:
Again, they presented no evidence over years.

[01:02:23] Speaker 02:
The statute actually starts.

[01:02:25] Speaker 02:
The defendant, the whole attorney stuff is just a clause in between that.

[01:02:29] Speaker 02:
The defendant shall only initiate contact with the victim.

[01:02:33] Speaker 02:
So that turns on just same speech, same scope, different interests when you apply scrutiny.

[01:02:40] Speaker 02:
And those interests are?

[01:02:42] Speaker 03:
So the different interests would be, first off, defendants themselves aren't bound by attorney ethics that require them to treat any witness in a certain way.

[01:02:54] Speaker 03:
And so that alone is a huge difference between the two situations.

[01:02:59] Speaker 04:
So is there a First Amendment problem with prohibiting a defendant?

[01:03:03] Speaker 04:
I mean, put aside, is that a First Amendment analysis at all?

[01:03:07] Speaker 04:
Let's assume we just had a statute that said the defendant may not contact the victim.

[01:03:11] Speaker 04:
Would there be any First Amendment problem with that statute?

[01:03:15] Speaker 04:
Put aside balancing and everything else for a moment.

[01:03:18] Speaker 04:
Will we even get to whether there's a First Amendment problem?

[01:03:20] Speaker 03:
Well, I think that there certainly is a First Amendment.

[01:03:23] Speaker 03:
It touches the First Amendment.

[01:03:24] Speaker 03:
The question is, does it violate the First Amendment, or is that prohibition justified by the state's interest?

[01:03:31] Speaker 03:
There's a balancing here.

[01:03:33] Speaker 04:
So you think that a statute that merely prohibited that would have to be analyzed under a First Amendment rubric?

[01:03:39] Speaker 03:
I think if that challenge was raised, yes, but I think that the outcome would likely be much different than the outcome here.

[01:03:45] Speaker 04:
So now we have a statute that says the defendant and his agents may not contact the victim.

[01:03:54] Speaker 04:
Why is the analysis different?

[01:03:58] Speaker 03:
Well, that analysis, again, I think falls somewhere between the two, because then you're talking about, is the defendant's agent the criminal defense attorney?

[01:04:07] Speaker 03:
And if so, then you're back to this case.

[01:04:09] Speaker 04:
Why are the First Amendment interests of the defendant and defense counsel different?

[01:04:15] Speaker 04:
Well, they each have their own.

[01:04:16] Speaker 04:
I understand how your balancing might be different, but why are the First Amendment interests of the defendant and defense counsel different?

[01:04:23] Speaker 03:
Because they each have their own individual First Amendment rights.

[01:04:26] Speaker 03:
The question is, are those rights violated with sufficient justification to allow the regulation at issue?

[01:04:33] Speaker 03:
What we do have here is a challenge related to the attorneys.

[01:04:36] Speaker 00:
But that leads back to a very profound question of what kind of First Amendment rights do attorneys have in their representational capacity?

[01:04:46] Speaker 00:
And is that, for example, different than a tingly case?

[01:04:50] Speaker 00:
I think that's what it was called.

[01:04:51] Speaker 00:
where you are regulating what psychotherapists do when they're being psychotherapists.

[01:04:56] Speaker 00:
And here we'd be regulating what lawyers do when they're being representatives.

[01:05:04] Speaker 00:
Now Gentile, or Gentilly, whatever it is called, seems to recognize those out-of-court speeches as being representational in some fashion, and therefore

[01:05:20] Speaker 00:
governed by a different standard.

[01:05:33] Speaker 03:
establishes a lower standard of restricting lawyer speech.

[01:05:36] Speaker 03:
It does so only when necessary to protect the integrity of the adjudicative process.

[01:05:42] Speaker 00:
And that is not... Oh, no, it didn't say that.

[01:05:43] Speaker 00:
It didn't say that.

[01:05:44] Speaker 00:
It said that is a interest that would suffice.

[01:05:48] Speaker 00:
It didn't say it was the only interest that would suffice.

[01:05:50] Speaker 03:
No, but it talks about the need for a fair and impartial jury, which is crucial to a fair... No, but what it said more generally was that you balance the

[01:06:01] Speaker 00:
First Amendment interests of the lawyers, and they did seem to think there were First Amendment interests of the lawyers against the state's interest in regulating.

[01:06:09] Speaker 00:
the profession, more generally.

[01:06:11] Speaker 00:
And then they said, well, this is an interest.

[01:06:15] Speaker 03:
Yes, that is accurate.

[01:06:16] Speaker 03:
But that heightened scrutiny, this statute doesn't pass that heightened scrutiny.

[01:06:20] Speaker 03:
Some of the things that the Gentile case relied on was that it was narrowly tailored to achieve the state's objectives.

[01:06:27] Speaker 03:
That's not what we have here.

[01:06:29] Speaker 03:
It only applies to speech that's substantially likely to materially prejudice an ongoing proceeding.

[01:06:34] Speaker 03:
Again, not what we have here.

[01:06:36] Speaker 00:
And then just neutralize the points of view, which we don't have here.

[01:06:38] Speaker 00:
They're expressing a different interest.

[01:06:40] Speaker 00:
Anyway, your time is way up.

[01:06:42] Speaker 02:
Mr. Keenan, thank you for your... Very, very interesting.

[01:06:45] Speaker 02:
Yes, for your generosity with us.

[01:06:47] Speaker 02:
And we will...

[01:06:50] Speaker 02:
Mr. Samuels, give you a little more than three minutes, but again, let's see how it goes.

[01:06:53] Speaker 02:
The new hour approaches.

[01:06:55] Speaker 01:
We'll see how it goes.

[01:06:56] Speaker 01:
I want to start by trying to clarify a few things just to make sure that our position's clear about what the statute covers and things like that.

[01:07:04] Speaker 01:
I'll actually start with the Arizona Supreme Court.

[01:07:06] Speaker 01:
Judge Hurwitz, you asked some questions about what the state of the law is in the Arizona Supreme Court.

[01:07:10] Speaker 01:
My understanding, I talked about the Champlain case earlier, which says a victim can be compelled to give a deposition, but I want to be clear, that case was in the context of

[01:07:19] Speaker 01:
The victim is a victim in case number one and not a victim in case number two, and they could be compelled.

[01:07:24] Speaker 04:
So the law is unsettled about whether or not a victim can be compelled to give a deposition in the case in which they're a victim?

[01:07:34] Speaker 01:
Yeah.

[01:07:34] Speaker 01:
I think the number one versus number two distinction here is important, and our position would be that they actually cannot be compelled in a case where they are a victim.

[01:07:40] Speaker 04:
Okay.

[01:07:40] Speaker 04:
I wanted to know your position on that.

[01:07:42] Speaker 01:
Yes.

[01:07:42] Speaker 01:
So I just want to be clear about that.

[01:07:43] Speaker 04:
Wouldn't that present a Sixth Amendment problem?

[01:07:46] Speaker 01:
Thankfully, thankfully that's not this case.

[01:07:49] Speaker 01:
We've got enough to talk about with the First Amendment, it seems.

[01:07:51] Speaker 02:
Well said.

[01:07:53] Speaker 02:
Go ahead, Mr. Sandberg.

[01:07:53] Speaker 01:
I also want to clarify as to the scope of this statute what our position is as to what the statute actually covers.

[01:08:02] Speaker 01:
It obviously covers direct contact with the victim about the particular case, trying to gather facts about the case or talk about the particular case.

[01:08:10] Speaker 01:
I also think it covers general advocacy that relates to the case.

[01:08:13] Speaker 01:
So if you have a capital case,

[01:08:14] Speaker 01:
and you want to just show up on the victim's doorstep and say, don't say a word to me, Mr. Victim, I just want to tell you everything about the death penalty.

[01:08:20] Speaker 01:
I think that's problematic too.

[01:08:22] Speaker 01:
But it doesn't cover the Girl Scout cookie example.

[01:08:25] Speaker 01:
That's our view, is that it's really focused on the defense attorney's role in the course of ongoing proceedings.

[01:08:32] Speaker 04:
And that's really- Even if the defense attorney knew that the victim was one of the people to whom she was trying to sell Girl Scout cookies.

[01:08:41] Speaker 01:
Yes, I mean, so imagine it's a small town and the defense attorney knows that the victim lives in a particular neighborhood.

[01:08:49] Speaker 01:
I don't think they have to alter the Girl Scout cookie route in order to avoid selling Girl Scout cookies to the victim just because they know that that person is a victim in one of their current cases.

[01:08:58] Speaker 02:
What about the text of the statute permits that reading in this posture?

[01:09:03] Speaker 01:
Well, I think the statute pretty clearly gears itself towards ongoing proceedings.

[01:09:07] Speaker 01:
It only applies in the statutory scheme once charges have been brought.

[01:09:11] Speaker 01:
And it requires you to go through a prosecutor.

[01:09:13] Speaker 01:
And obviously, there would only be a prosecutor when there are active charges.

[01:09:16] Speaker 01:
And so I think that the reasonable reading of the statute is that it really is geared towards those ongoing proceedings.

[01:09:23] Speaker 01:
And so to answer one of your questions, Judge Berzon, I don't know that we feel compelled to provide any supplemental briefing on that issue, and that I hope our position is pretty clear about what the statute covers and does.

[01:09:35] Speaker 00:
That wasn't really the question.

[01:09:36] Speaker 00:
The question was about how the standing ruling interacts with what's left in this case.

[01:09:46] Speaker 00:
You said, well, nobody said it, but that's nice.

[01:09:48] Speaker 00:
It's still a standing ruling.

[01:09:53] Speaker 00:
have the problem of we're now having this debate about what an interview is.

[01:10:00] Speaker 00:
Because rule 39 says that you must communicate requests to interview a victim to the prosecutor, not the victim.

[01:10:08] Speaker 00:
And the statute deals with contacts.

[01:10:12] Speaker 00:
And the panel said that you can contact a victim without requesting to interview them.

[01:10:17] Speaker 00:
So if that's all that's before us, what's before us?

[01:10:20] Speaker 00:
And what does it mean?

[01:10:21] Speaker 00:
because we're having this debate with your opponent.

[01:10:27] Speaker 00:
You seem to disagree about what an interview is, or do you disagree about what an interview is?

[01:10:32] Speaker 01:
I think there is some disagreement there.

[01:10:33] Speaker 01:
Ultimately, though, I don't think it's necessarily material to this court's First Amendment analysis in this case.

[01:10:38] Speaker 01:
I think even if you were going to carve off a piece of the case because of the standing ruling and how the rule interacts with the statute, I understand the other side to be pointing to particular aspects of how contact is initiated and thus conversations can be started, and that that's really the core of their case.

[01:10:56] Speaker 01:
And that, I think we all agree, is not covered by the rule.

[01:10:59] Speaker 00:
And so I don't know that the interview question... A request to interview a victim isn't a contact?

[01:11:06] Speaker 00:
Isn't contacting the victim?

[01:11:07] Speaker 00:
Of course it is.

[01:11:08] Speaker 01:
No, I think a request to interview a victim very much is a contact.

[01:11:13] Speaker 00:
So there must be something that is contacting a victim that isn't a request to interview them.

[01:11:17] Speaker 01:
So take, for example, I just made up an example where a defense attorney shows up on a victim's doorstep and says, you know, okay, victim, you just answered the door.

[01:11:26] Speaker 01:
Please don't say a word to me.

[01:11:27] Speaker 01:
I'm not going to ask anything of you.

[01:11:28] Speaker 00:
I just want to tell you things.

[01:11:30] Speaker 00:
So the question is, is that all that's left in the case?

[01:11:33] Speaker 01:
And I'm not sure it's the only thing that's left in the case.

[01:11:36] Speaker 01:
But even if it were the only thing left in the case, I'm not sure that that necessarily impacts the analysis here.

[01:11:41] Speaker 01:
And that I understand the other side to be saying, even if that's the only thing left in the case, you still have the same First Amendment problem.

[01:11:48] Speaker 01:
Obviously, we disagree.

[01:11:49] Speaker 01:
But I think that cuts to the core of the case.

[01:11:51] Speaker 02:
None of the interests proffer that going back and forth between the state interests and whether they're sufficient, none of those relate to the interview representational piece.

[01:12:01] Speaker 02:
much broader, whether secondary effects or whatever rubric.

[01:12:04] Speaker 02:
It's not about the interview.

[01:12:06] Speaker 01:
I think that's probably a better way of saying what I was trying to say.

[01:12:09] Speaker 04:
The state's view of our MEMDISP is that it really didn't limit the issues.

[01:12:15] Speaker 04:
It didn't prevent the other side, AACJ, from raising the issues they're now raising.

[01:12:22] Speaker 01:
That's right.

[01:12:22] Speaker 01:
We didn't read it that way.

[01:12:24] Speaker 01:
I mean, certainly the, I think the prior decision was right to be thinking about redressability and it was in that context.

[01:12:30] Speaker 04:
So it didn't say you also, you also don't have, it didn't say, but if you were only arguing this, you wouldn't have standing.

[01:12:37] Speaker 04:
It said you have standing because you face under the rule, the potential for discipline.

[01:12:44] Speaker 04:
It didn't address whether or not they would have standing if there were no rule and we were only dealing with the statute.

[01:12:50] Speaker 01:
Yes, yes.

[01:12:51] Speaker 01:
I think that's right.

[01:12:53] Speaker 02:
On the conduct piece, I'd ask you this question and wondered whether we certainly gave you plenty of time at your desk to think about this.

[01:13:00] Speaker 02:
Again, trying to figure out what rubric this falls in as a First Amendment case or not.

[01:13:10] Speaker 02:
So,

[01:13:11] Speaker 02:
Hill versus Colorado, the only one that I could find that involved consent.

[01:13:15] Speaker 02:
I mean, would it have been, the court upheld the law there requiring consent to be counseled by a sidewalk counselor or protester.

[01:13:26] Speaker 02:
Don't you think it would have made a difference if the Colorado law required the protester to request consent through the clinic?

[01:13:36] Speaker 02:
And why or why not?

[01:13:38] Speaker 02:
Or do you have something better for me on whether this is a speech case at all?

[01:13:43] Speaker 01:
I think in order to answer that, I really would have to back up and look first at the conduct versus speech question.

[01:13:50] Speaker 01:
And I really do think this is quite different where you have an attorney representing a client on going proceedings.

[01:13:56] Speaker 02:
But that doesn't change the speech issue.

[01:13:59] Speaker 02:
That just changes what level of scrutiny we might apply.

[01:14:03] Speaker 01:
That's right.

[01:14:03] Speaker 01:
But I think before you even get to the question of applying any level of scrutiny, you have to figure out that there really is speech involved.

[01:14:09] Speaker 01:
And obviously our position is that this is really not a speech case.

[01:14:12] Speaker 01:
It's a conduct case that has impacts on speech.

[01:14:15] Speaker 02:
All of the attorney conduct cases, all usually upheld and deferential, but all speech cases.

[01:14:20] Speaker 02:
Do you have an attorney conduct case that doesn't involve speech?

[01:14:24] Speaker 01:
No, I think the best cases for us on that front are the recent conversion therapy cases like Tingley and Pickup.

[01:14:32] Speaker 01:
Pickup in particular, part of Pickup is no longer good law after NIFLA, but part of it plainly is, and Tingley says that.

[01:14:39] Speaker 01:
And Pickup has a section of it that pretty clearly details what it calls a spectrum from conduct to speech.

[01:14:46] Speaker 01:
And on the speech side of the spectrum, you have public dialogue, even if it's by a professional.

[01:14:51] Speaker 01:
And on the conduct side, you have what you have in something like Pickup or Tingly, which is someone engaged in the practice of their profession.

[01:14:58] Speaker 01:
in, you know, you have psychotherapists in those cases, the practice of their profession is out loud, it's words, just like for attorneys, but that doesn't mean it's not contact.

[01:15:06] Speaker 02:
Does it make a difference that all of this speech is occurring within the context of a patient or client relationship?

[01:15:15] Speaker 02:
I mean, Gentile, all of these cases involve, we talk about within the practice of law, but this is happening within a client relationship.

[01:15:23] Speaker 02:
Isn't it a distinction that this statute doesn't cover

[01:15:27] Speaker 02:
anything in the client relationship?

[01:15:30] Speaker 01:
Well, I think this statute is plainly contingent on a client relationship.

[01:15:35] Speaker 01:
It only applies to defense counsel in a particular case.

[01:15:38] Speaker 02:
The speech that takes place is not occurring, unlike all of these other cases, even NIFLA, within a patient or client relationship.

[01:15:47] Speaker 01:
Yes, but I think what's important here is that what the statute regulates is the initial contact.

[01:15:51] Speaker 01:
It doesn't care at all about the speech that follows if the victim consents to the contact.

[01:15:55] Speaker 02:
OK, what do you got on that, though, in terms of the initial contact?

[01:15:58] Speaker 02:
How is the initial contact not a speech conversation?

[01:16:03] Speaker 01:
I don't think there is a case that clearly resolves this one way or another, as with many of the things we're talking about here, I guess.

[01:16:08] Speaker 00:
Quite graphically, he has a letter he wants to send to the victim, and he can't send that letter to the victim.

[01:16:16] Speaker 00:
He's not allowed to.

[01:16:17] Speaker 00:
And the way it's administered, you can't even send it through the prosecutor.

[01:16:23] Speaker 00:
You can't send it.

[01:16:24] Speaker 00:
As I've been saying, I think maybe if you just voted his letter, maybe that would be conduct, but you're not doing that.

[01:16:32] Speaker 00:
How does that influence our facial challenge here?

[01:16:37] Speaker 00:
I mean, the statute wouldn't prevent you from ministering in that way, but you're not administering it that way.

[01:16:43] Speaker 00:
So you are, in fact, as the way you're administering it, preventing

[01:16:48] Speaker 00:
speech, even if it's not major speech, speech, i.e.

[01:16:51] Speaker 00:
this letter I want to write.

[01:16:52] Speaker 01:
Yeah, I mean, for reasons we've already talked about, I would obviously quibble with some of the premises there, but... I'm sorry?

[01:16:59] Speaker 01:
I think I would push back on some of the premises there about the letters and whether the letters are okay.

[01:17:03] Speaker 00:
I don't care what, now I'm not even talking about what's in your letter.

[01:17:07] Speaker 00:
The fact is that you're not allowing them to send their letter.

[01:17:12] Speaker 00:
in any fashion.

[01:17:13] Speaker 04:
In effect, you have a statute that says somebody wants to talk to you.

[01:17:18] Speaker 04:
Before I give them, before I let them talk to you or give them the letter or let them talk to you directly, I need to let you know that you have the right to say no.

[01:17:30] Speaker 04:
So it prevents the letter from getting to them.

[01:17:32] Speaker 04:
They don't even know what's in the letter until they consent to the contact.

[01:17:39] Speaker 04:
Does that present a First Amendment problem?

[01:17:41] Speaker 01:
It doesn't.

[01:17:42] Speaker 01:
I mean, so let me set the conduct question aside for a second, because I take it that the court is also interested in what to do if this is speech.

[01:17:50] Speaker 04:
I'm trying to make this into a speech thing.

[01:17:52] Speaker 04:
So somebody is saying, I have something I want to say.

[01:17:55] Speaker 04:
It's in the letter.

[01:17:56] Speaker 04:
I want to send it to the victim.

[01:17:59] Speaker 04:
And under the Arizona law, before that letter gets to the victim,

[01:18:04] Speaker 04:
that the victim must consent to being to contact by the defense lawyer.

[01:18:09] Speaker 04:
He may or may not know what's in the letter.

[01:18:10] Speaker 04:
That's a separate issue.

[01:18:12] Speaker 04:
Nothing in the statute that prohibits the prosecutor from passing it on.

[01:18:16] Speaker 04:
But the victim has the absolute right, I think, under the statute to say, I don't want to see a letter from him.

[01:18:21] Speaker 04:
I don't want any contact whatsoever.

[01:18:24] Speaker 04:
Fine.

[01:18:25] Speaker 04:
So what we're doing is saying there is a restraint here of some kind that prevents that speech.

[01:18:33] Speaker 04:
is, why doesn't that come under the prior restraint sort of cases?

[01:18:37] Speaker 01:
So I think, let me start with the last piece of that and try to back up a little bit.

[01:18:40] Speaker 01:
On the prior restraint front, typically we think of prior restraints as being concerned about the censoring.

[01:18:45] Speaker 04:
It's not a prior restraint.

[01:18:46] Speaker 04:
Yeah.

[01:18:47] Speaker 04:
No, it's not.

[01:18:47] Speaker 04:
I don't mean that it's a prior restraint, but I mean it implicates, why doesn't it implicate speech under those circuits?

[01:18:52] Speaker 04:
Better question.

[01:18:53] Speaker 01:
Sure, sure.

[01:18:53] Speaker 01:
So let me assume for a second that we're talking about speech.

[01:18:56] Speaker 01:
Obviously, the fact that we're talking about speech doesn't end the analysis.

[01:18:59] Speaker 01:
We then have to figure out a number of other things.

[01:19:01] Speaker 01:
I think the first thing you have to figure out is what scrutiny to apply.

[01:19:04] Speaker 01:
And that's where I think genteel is in here and said there's no speech.

[01:19:07] Speaker 00:
It's conduct.

[01:19:08] Speaker 00:
So that's what we're trying to find out first.

[01:19:11] Speaker 00:
Okay.

[01:19:12] Speaker 01:
Certainly, yeah.

[01:19:13] Speaker 01:
And I took Judge Hurwitz to be asking a question that sort of assumes that we're talking about speech here.

[01:19:18] Speaker 01:
And so I was only answering in that context.

[01:19:21] Speaker 00:
Obviously, our position- Well, why aren't we talking about speech here, if that's the case?

[01:19:25] Speaker 00:
That's what you're doing here.

[01:19:26] Speaker 04:
Or is the conduct sending- the conduct is contacting any mechanism, whether through speech or otherwise, with the

[01:19:35] Speaker 04:
That's what I'm trying to figure out.

[01:19:36] Speaker 01:
Yeah, I mean, let me try to get at what I think is driving some of these questions, which is obviously there's a message that a defense attorney, at least in this hypothetical where they have a letter, wants to deliver and they're being prevented from delivering it.

[01:19:47] Speaker 01:
I can see how at first blush you think, well, maybe that's speech.

[01:19:50] Speaker 01:
But then I would encourage the court, look at tingly, look at pickup.

[01:19:54] Speaker 01:
The fact that it's a message that's being delivered doesn't end the analysis.

[01:19:58] Speaker 01:
There you have someone practicing their profession and the way they practice it is by speaking words to the client.

[01:20:03] Speaker 04:
Well, does the statute prohibit, again, put aside the Girl Scout cookie thing.

[01:20:08] Speaker 04:
Defense lawyer wants to knock on the front door of the victim and size them up.

[01:20:17] Speaker 04:
Did they look like they're going to be a good witness in court?

[01:20:19] Speaker 04:
Did they look shifty?

[01:20:21] Speaker 04:
I don't want to say anything to them.

[01:20:22] Speaker 04:
I just want to knock on the front door of the victim and have them open the door.

[01:20:27] Speaker 04:
Does the statute prohibit that?

[01:20:29] Speaker 01:
I think it does.

[01:20:30] Speaker 01:
I think that is contact as the statute contemplates contact.

[01:20:34] Speaker 04:
So without regard to the method of contact, the statute prohibits it?

[01:20:39] Speaker 01:
Yes.

[01:20:40] Speaker 04:
If the method of contact is proposed speech, does that make a difference?

[01:20:44] Speaker 01:
I don't think it makes a difference to the statute.

[01:20:46] Speaker 01:
The proposed method of contact is speech.

[01:20:47] Speaker 01:
Yes, and I think this is part of my point here, which is that I don't think the statute cares whether the method of contact is a knock on the door, or a letter, or a phone call, or a text message.

[01:20:58] Speaker 01:
What it cares about is that contact is made or not made, and the statute wants contact not to be made.

[01:21:04] Speaker 00:
I mean, since you haven't really been able to tell us why that isn't a suppression of speech, if it is a suppression of speech, you say,

[01:21:13] Speaker 00:
then we get to levels of scrutiny.

[01:21:15] Speaker 00:
So what do we get?

[01:21:16] Speaker 00:
Do we get to the Gentile list?

[01:21:18] Speaker 00:
I mean, because Gentile itself was about representation.

[01:21:22] Speaker 00:
I mean, the whole premise of it was that in making this external talk, he was representing his client.

[01:21:28] Speaker 00:
So you have a problem there, too, in terms of trying to back this out as a tingly situation, because they treated that as a First Amendment problem.

[01:21:38] Speaker 00:
Yeah, I think the speech in Gentile is quite different in that you have... Well, it may have been, but it was clearly representational, and they said it was representational.

[01:21:46] Speaker 01:
Yeah, and I hope you're not taking me to say that anything that is representational is necessarily conduct.

[01:21:50] Speaker 01:
That's not the argument, and Gentile obviously would preclude that argument.

[01:21:53] Speaker 02:
There would be an extension of Tingley as well, right?

[01:21:56] Speaker 02:
Those cases, where do we draw the line if not at the patient or client relationship?

[01:22:03] Speaker 01:
I think it's the fact that mere contact is prohibited by the statute.

[01:22:07] Speaker 01:
I mean, to get to what Judge Hurwitz was just asking about, there doesn't have to be any speech for the contact to be, for the statute to be implicated.

[01:22:16] Speaker 01:
And this is, after all, a facial challenge.

[01:22:18] Speaker 00:
And so if it's the case... But that's actually apathetical, because nobody's going to call knocking on the door just to look at somebody.

[01:22:23] Speaker 00:
They're going to say something.

[01:22:27] Speaker 01:
I take the point, but I think it helps demonstrate that it really is the mere contact that the statute is concerned with and not any speech that's going to follow.

[01:22:35] Speaker 01:
To get back to genteel, there you have what is much more plainly in the realm of the First Amendment and that you have an attorney speaking to the media.

[01:22:45] Speaker 01:
You know, for obvious reasons, I think the court there concluded that we're talking about speech.

[01:22:49] Speaker 01:
But genteel does provide a lower standard and says that that lower standards any, it applies any time an attorney is representing a client's interest in ongoing legal proceedings.

[01:22:59] Speaker 01:
I don't think that has changed.

[01:23:01] Speaker 01:
And I don't think there's anything else, any other precondition for genteel's application.

[01:23:06] Speaker 04:
So if we were to, the district court didn't apply genteel here in the sense of a lowered standard, what should we do if we think that genteel

[01:23:14] Speaker 04:
is the appropriate legal analysis.

[01:23:18] Speaker 04:
Should we do it ourselves or should we send it back to the district court and say, conduct?

[01:23:22] Speaker 04:
They say you gave no reason at all.

[01:23:24] Speaker 04:
I kind of think the statute on its face gives a reason.

[01:23:28] Speaker 04:
And the legislative history of the statute gives a reason, which is that there was some perceived history of victims being made unhappy by contact.

[01:23:37] Speaker 04:
But what should we do?

[01:23:38] Speaker 01:
I think the court could do either.

[01:23:40] Speaker 01:
Undoubtedly, the court could issue an opinion that says, genteel applies, the district court applied the wrong rubric, let's send it back to the district court and let them do this in the first instance.

[01:23:50] Speaker 01:
I'm not sure the court needs to do that on this particular set of facts, and let me try to say why, which is the district court already issued very detailed findings of fact and conclusions of law, about 50 pages of them.

[01:24:03] Speaker 01:
Frankly, looking at those findings, in fact, and conclusions of law, if the district court were to go back and apply genteel, I think we have a pretty good idea how it's going to come out.

[01:24:12] Speaker 01:
And so, you know, usually when the court is sending something back to be evaluated under a new test, it's because something was left open by the district court in the first instance.

[01:24:22] Speaker 01:
I'm not sure much is left open here.

[01:24:23] Speaker 00:
I would say that 90% of the time that we send things back, we get the same answer a second time.

[01:24:28] Speaker 01:
And I would suggest that even if it might not be my client's preference, you would probably get the same answer this time.

[01:24:34] Speaker 01:
And so I think the court has what it needs in front of it to evaluate this question, although obviously it has a discretion to send it back.

[01:24:41] Speaker 02:
Thank you.

[01:24:41] Speaker 02:
Any other questions?

[01:24:44] Speaker 04:
Could I thank counsel?

[01:24:45] Speaker 02:
Yes.

[01:24:46] Speaker 02:
Yes, we will all thank you.

[01:24:46] Speaker 02:
Are there arguments in their patience?

[01:24:49] Speaker 02:
Excellent presentations and patience.

[01:24:51] Speaker 00:
A wonderful day of legal inquiry, so thank you.

[01:24:54] Speaker 02:
The case is submitted, and we'll recess for the day.