Source: nytimes.com 6/15/21
Judge Patrick L. Michot, of the 15th Judicial District Court in Lafayette, La., said the notation was “not the least restrictive way to further the state’s legitimate interest of notifying law enforcement.”
“It could be accomplished in the same way that some other states utilize,” he said. “Louisiana could use more discreet labels in the form of codes that are known to law enforcement.”
Of the nine states that call for some sort of disclosure of sex-offense status on state ID cards, Louisiana and four others require all people on the registry to have cards with a variation of the words “sex offender,” according to a brief filed by Mr. Hill’s lawyers. Others use codes or symbols recognizable to law enforcement officials.
The Louisiana Supreme Court agreed with Judge Michot, relying on U.S. Supreme Court decisions forbidding the government to compel speech.
In 1977, for instance, the court ruled that New Hampshire could not require people to display plates bearing the state’s motto, “Live Free or Die,” saying that George Maynard, a Jehovah’s Witness, should not have been prosecuted for covering the motto with duct tape.
Whether the U.S. Supreme Court agrees to hear the case, Louisiana v. Hill, No. 20-1587, may turn on whether the justices think the lower courts have disagreed on the central legal question it presents. In the most directly analogous case, a federal trial judge in Alabama in 2019 struck down a law very much like the one in Louisiana for essentially the same reasons.
On the other hand, Judge Phyllis J. Hamilton of the Federal District Court in Oakland, Calif., in 2016 rejected a challenge to a federal law requiring passports to identify people convicted of sex offenses involving minors.
Notations on passports are the government’s speech, Judge Hamilton wrote, and the government can generally say whatever it wants to. “It is not the speech of the passport holder that is at issue, any more than the speech of the holder of a government-issued identification card is at issue with regard to identifiers such as name, date of birth, height, weight or eye color,” she wrote.
More recently, in December, Judge Marc T. Treadwell of the Federal District Court in Macon, Ga., rejected a First Amendment challenge to a sheriff’s practice of putting signs in front of the homes of families if someone there is listed on the sex offense registry on Halloween.
The signs were not compelled speech, Judge Treadwell wrote, as nobody thinks “the resident agreed with the sign’s message: that trick-or-treating at their residence was dangerous.” He added that the residents could use their free speech rights “by posting competing messages.”
By contrast, he wrote, the Louisiana law “prohibiting alterations of a driver’s license made it practically impossible for the criminal defendant to disassociate from the message or disclaim the message without facing prosecution.”