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Louisiana Supreme Court: Statute Compelling Registered Sex Offenders to Carry ID Emblazoned with ‘SEX OFFENDER’ Unconstitutional

The State charged Tazin Ardell Hill with altering an official identification card to conceal his designation as a registered sex offender, in violation of La. R.S. 15:542.1.4(C). Hill pleaded not guilty and filed a motion to quash, arguing that La. R.S. 40:1321(J) and 15:542.1.4(C) are unconstitutional. Section 40:1321(J) requires all registered sex offenders to obtain and carry identification emblazoned with the words “SEX OFFENDER” in all capital letters written in orange, and § 15:542.1.4(C) makes it a criminal offense to alter with intent to defraud any document required by § 40:1321(J). Hill contended the statutes violate the First Amendment prohibition against compelled speech. The district court agreed, finding the statutes unconstitutional and quashing the bill of information charging Hill. The State appealed.

The Court observed “[t]he First Amendment provides that ‘Congress shall make no law ... abridging the freedom of speech.’” And “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Board of Education v. Barnette, 319 U.S. 624 (1943).

While the Free Speech Clause of the First Amendment does not bar the government from regulating its own speech, Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), it does constrain the government from compelling private persons to “convey the government’s speech.” Wooley v. Maynard, 430 U.S. 705 (1977). The government may regulate speech to further a compelling governmental purpose, but when doing so, the regulation must be narrowly tailored to serve that interest (aka “strict scrutiny test”). In re Warner, 21 So.3d 218 (La. 2009).

The U.S. Supreme Court announced in Walker a three-factor test to identity government speech: (1) the medium’s history of communicating government messages, (2) the level of the public’s association of that medium with government speech, and (3) the extent of the government’s control over the message conveyed. In Walker, the Sons of the Confederate Veterans (“SCV”) attempted to force Texas to permit the SCV to display a message on their personalized license plates that Texas found objectionable. The Supreme Court stated that the history of license plates, their design, and the governmental purpose of vehicle registration and identification all indicated that the public associates license plates with the government, and license plates are, in effect, government IDs. Issuers of IDs “typically do not permit” placement on their IDs “message[s] with which they do not wish to be associated.” Id. Consequently, since license plates are viewed to carry government speech, the SCV’s right to free speech was not violated by Texas’ refusal to carry the SCV’s message, ruled the Walker Court.

But in Wooley, a Jehovah’s Witness sought to keep the state of New Jersey from prosecuting him again for covering the state’s motto on his license plate that read: “Live Free or Die.” There, the U.S. Supreme Court held the state could not “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be read and observed by the public.” And in Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988), the Supreme Court held that the constitutional proscription against state-compelled ideological messages also applies to messages containing facts.

The Court found Doe 1 v. Marshall, 367 F. Supp. 3d 1310 (M.D. Ala. 2019), a case in which a federal district court struck down an Alabama statute requiring sex offenders to carry identification bearing the words “criminal sex offender,” instructive. The district court determined it was “compelled speech” under the test in Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015): (1) there must be speech (2) to which the plaintiff objects (3) that is compelled and (4) that is readily associated with the plaintiff.

In the instant case, the Court observed that Louisiana’s personal identification cards are readily associated with the person displaying it. Because the State has other less restrictive means of identifying sex offenders to protect the public (such as the sex-offender registry), compelling sex offenders to display “sex offender” on their identification cards, which constitutes content-based regulation of speech, is not the least restrictive means of protecting the public, the Court concluded. Therefore, the Court ruled that the statutes fail to pass strict scrutiny analysis and are thus unconstitutional.

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State v. Hill



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