UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARIZONA ATTORNEYS FOR No.22-16729 CRIMINAL JUSTICE; CHRISTOPHER BAIRD DUPONT; D.C. No. RICH ROBERTSON; RICHARD L. 2:17-cv-01422- LOUGEE; RICHARD D. RANDALL; SPL JEFFREY A. KIRCHLER; JOHN CANBY, Plaintiffs-Appellees, OPINION v. KRISTEN K. MAYES, in her official capacity as Attorney General of the State of Arizona, Defendant-Appellant, and MARET VESSELLA, Chief Bar Counsel of the State Bar of Arizona; JEFFREY D. GLOVER, Colonel, in his official capacity as Director of the Arizona Department of Public Safety,* Defendants.

* Colonel Jeffrey D. Glover is substituted for his predecessor Colonel Heston Silbert as Director of the Arizona Department of Public Safety, pursuant to Federal Rule of Appellate Procedure 43(c). 2 ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE V. MAYES

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted February 5, 2024 Phoenix, Arizona

Filed January 23, 2025

Before: Marsha S. Berzon, Andrew D. Hurwitz, and Anthony D. Johnstone, Circuit Judges.

Opinion by Judge Johnstone

SUMMARY**

First Amendment

The panel reversed the district court’s judgment for plaintiffs, Arizona Attorneys for Criminal Justice (“Attorneys”), and remanded, in an action alleging that an Arizona law that requires criminal defense attorneys and their agents (“Defense Team”) to initiate any contact with victims through the prosecutor’s office (the “Victim Contact Limit”) violates, on its face, the Speech Clause of the First Amendment. The Victim Contact Limit, Ariz. Rev. Stat. Ann. § 13- 4433(B), primarily applies to requests for interviews, ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE V. MAYES 3

including, but not limited to, investigative interviews seeking exculpatory information. But it also prohibits covered actors from reaching out to victims for non- interview conversations and information sharing on other topics, such as the criminal legal system and the death penalty process. The panel noted that in considering a facial challenge it may assume without deciding that the statute reaches some protected speech. The Attorneys must also show, however, that a substantial number of the Victim Contact Limit’s applications are unconstitutional, judged in relation to the law’s plainly legitimate sweep. Here, the Attorneys challenged the Victim Contact Limit’s application only to the extent it requires them to funnel requests for non- interview contacts through the prosecution. But victim- interview requests are the statute’s primary applications. So, even assuming the challenged applications of the law are unconstitutional, they are not substantial relative to the unchallenged applications. Therefore, as framed, the Attorneys’ facial challenge to the Victim Contact Limit fails. The panel reversed the district court’s ruling that the Victim Contact Limit is unconstitutional on its face, vacated the permanent injunction against its enforcement, and remanded for entry of judgment in favor of defendants. 4 ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE V. MAYES

COUNSEL Jared G. Keenan (argued), American Civil Liberties Union of Arizona, Phoenix, Arizona; Kathleen E. Brody, Mitchell Stein Carey Chapman PC, Phoenix, Arizona; David A. Lane, Killmer Lane LLP, Denver, Colorado; Andrew McNulty, Newman McNulty, Denver, Colorado; for Plaintiffs- Appellees. Alexander W. Samuels (argued), Principal Deputy