Arizona’s Sexually Violent Persons Act survives constitutional challenge

Tuesday, May 18, 1999

An Arizona law allowing state officials to confine “sexually violent persons” and release their psychological records to the courts does not violate the First Amendment, a state appeals court recently ruled.

Arizona’s Sexually Violent Persons Act defines a “sexually violent person” as someone who:

(a) “has … been convicted of or found guilty but insane of a sexually violent offense or who was charged with a sexually violent offense and who was determined incompetent to stand trial.

and who
(b) “has a mental disorder that makes the person likely to engage in acts of sexual violence.”

Approximately a dozen individuals designated as sexually violent persons, or SVPs, had sued a state judge and the state of Arizona, contending that the law was unconstitutional for a number of reasons.

The plaintiffs claimed, among other things, that the law was unconstitutionally vague and that it chilled First Amendment free-speech rights.

The plaintiffs alleged that the law was vague because some of the terms in it were not sufficiently clear to the average person. They also contended that the flexibility in some of the terms would lead to arbitrary enforcement.

However, the Arizona Court of Appeals ruled on May 13 in Martin v. Reinstein that the terms were “adequately defined.”

The plaintiffs had particularly focused on the use of the word “likely” in the law’s phrase “likely to engage in acts of sexual violence.” The appeals court wrote that “the term ‘likely’ is reasonably understood and effectively used often in our laws.” The court cited other statutes that use similar language.

The plaintiffs also argued that the act violates First Amendment free-speech rights by allowing the state access to the plaintiffs’ psychological reports and tests during the proceedings to determine whether the person qualifies as a “sexually violent person.”

Disclosing private medical records would impermissibly chill the flow of constitutionally protected speech between doctors and patients, the plaintiffs contended.

The court determined that “the act does not regulate the content of speech, but only places an incidental burden on speech.” In First Amendment jurisprudence, a law that places only an incidental burden on speech is constitutional if:

  • The law furthers an important or substantial governmental interest;
  • The governmental interest is unrelated to the suppression of free expression; and
  • The incidental restriction on First Amendment freedoms is no greater than essential to furthering the governmental goal.

The court easily found that the government had substantial interests in “protecting the public” and “providing proper treatment” to the sexually violent persons.

Next, the appeals court ruled that the governmental interest was “unrelated to the suppression of free expression.” The government interest was not in restricting speech but in protecting people and encouraging people to speak freely and become rehabilitated.

Finally, the court determined the law was no more burdensome than necessary to serve the government’s interest because the “information is released solely for use by the court in the SVP proceedings.”

“We thus conclude that the Act does not impermissibly infringe Petitioners’ interest in speaking freely to their treating physicians,” the court wrote.