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National

Supreme Court won’t consider whether states can require ID cards for sex offenders

Source: nbcnews.com 10/4/21

WASHINGTON — The Supreme Court on Monday declined to consider whether states can require ID cards or drivers licenses to identify people as convicted sex offenders.

A Louisiana man, Tazin Hill, challenged a state law that required him to carry an identification card that included the words “sex offender” in all-capital letters after he was convicted of having sex with a 14-year-old girl when he was 32.

Hill said the law violated the First Amendment by forcing him to convey the government’s message. A state court judge agreed, finding that the sex-offender designation was not “the least restrictive way to further the state’s legitimate interest of notifying law enforcement” of a person’s status, and suggesting that the state could find a more discreet alternative.

Louisiana’s Supreme Court concurred with that conclusion, so the state’s lawyers appealed to the Supreme Court. But the court denied review without comment Monday.

Read the full article

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This is good new. But it would have been nice to have SCOTUS affirm this judgement so it would be binding in all States. But this will make it easier to contest markers on ID’s in other States and perhaps passports.

Unfortunately, the case is having “SEX OFFENDER” writing in plain, bold English on an ID versus a mark i.e. SE in the back of the card.

The court is more concerned about how it looks rather than the actual intent of the law.

I’d rather have no identifier. Cops already know who I am, why does Karen need to know?

@Resident:

Unfortunately, the case is having “SEX OFFENDER” writing in plain, bold English on an ID versus a mark i.e. SE in the back of the card.

While Question 1 before SCOTUS was about “sex offender” being compelled speech, the underlying issue was not “sex offender” but compelled speech.

This isn’t as big of a win as a SCOTUS decision but, just like Snyder has already become, this case, along with the District decision out of AL a couple years ago, will be used extensively. In truth, having a court decide the other direction could well land this question back before SCOTUS (in a few years).

This is a win. The only way it could have been a loss was for SCOTUS to overturn. Now it’s a solid persuasive case to use in those other 8 States.

@Lake County, My take is that it makes the Louisiana Supreme Court ruling persuasive in other courts regarding markers on ID’s and may also be persuasive regarding passport markings in a future challenge, though admittedly the passport marking is far more discrete (because it is on the back cover and not where people normally look) than the ID marking for Louisiana. Even though this was a state supreme court ruling, the analysis was based on the federal and not state constitution so that is what matters here. So this is good overall.

There is one problem though. I think the Supreme court just kicked the can down the road by not taking the issue up. That’s because since it is now only persuasive and not binding, there is going to be future appeals by those required to have the marking on their license in other states creating a conflict of law that they will have to decide at some time in the future. I suspect though actually that the court may understand that there are things in these registration laws that need to be overturned because of the constitution but if they actually take them up they would have to overturn them and they don’t want to do this because it would be pretty unpopular. Therefore, they wait until they have almost no other choice.

So they agree with the ruling, but they do not want to appear soft on crime, especial sex crimes.

In a way, yes, but they’re cowards since they’re too afraid to make it binding for all states, plus I’m sure they know it would also destroy the IML law for passports. That alone says they’re crooked and must go since they refuse to uphold the constitution when it comes to certain crimes such as sex crimes. Considering they’re appointed for life, you’d think they would rule on whats right and not care about people liking them……

I get the want to apply it nationwide but this is why the right questions need to be asked and this one did.

I just want someone in Oklahoma to see it to rechallenge their markers since it was incorrectly challenged before and in FLA since precedent is stronger for non-verbiage markers. Maybe it’ll deter GA too.

This is what I expected to happen. The case was properly decided, using solid SCOTUS decisions, so why would SCOTUS reach out to affirm? If a contrary opinion comes along, it may well be taken up for “correction” by SCOTUS.

I don’t see it as being cowardice or soft on crime. I see it as SCOTUS deciding which 0.1% of the cases presented that it will hear. This was correctly decided by the lower court (though SCOTUS didn’t say that…@New Person). Why would SCOTUS expend its valuable time on affirming this case that applies to a sliver of society when it can instead handle larger, more broadly affecting cases?

As for being afraid to make it binding on all States, why would SCOTUS do that when only 9 or 10 States are doing this? That would truly be finding a solution for what’s not a widespread problem.

With the AL District decision and now this LA SC decision, it’s time to hit the other Southern States (GA, MS, FL, at minimum) with these persuasive cases. Just like Snyder, this can–and will–be used elsewhere. The States that piled on in the amicus are on their heels some now. Time to strike, including in OK, as @TS pointed out.

AJ
I completely agree with you. SCOTUS had no reason to hear this case until a conflicting case is brought before them.

@Lake County:
Thanks. It’s the exact same situation as what happened with Snyder and Muniz. Unless or until a conflicting decision arises, SCOTUS has zero interest.

In a way, this is good for us. We have shown that we can win at the circuit levels and this might just be the road to if not elimination, then restriction. Roberts is too worried about overturning precedents, like Smith v Doe. But the circuits aren’t. If there are enough cases decided at circuit levels, especially in overwhelming fashion, the USSC might just throw its hands up.

Case in point, North Carolina (Internet Restrictions), MI (Registry as punishment), and now NO (Compelled speech on licenses) have now all left to stand by the USSC.

Yup. I think all the Justices that are resisting taking all these cases because they know how they should be ruled, but are declining to do so to not tarnish their records. So they’re probably hoping to wait it out until they’re dead and off the bench.

This is just SCOTUS playing a neutral role by not making a ruling. They know that anything negative made against SORNA, it would open the floodgates to allow further challenges against IML. In other words, they’re protecting the house of cards.

Fact is SCOTUS does not grant cert unless there is a viable question to contemplate. SCOTUS has granted cert on the messaging demand by state law on this issue. Therefore, it is safe to presume a issue of constitutionally regarding the law itself has always been therein the regime. These ARE the kinds of issues lawmakers as suppose to contemplate before passage in the people’s houses. Generally, those kinds of issues of constitutional allegiance are considered by state’s ( or fed) judiciary committee. Clearly unconstitutional laws and tactics are not being weeded out by those important committee.

@Tim in WI:

SCOTUS has granted cert on the messaging demand by state law on this issue.

Please explain this statement. What case?

I wholly agree that this shouldn’t even be a SCOTUS issue. If legislatures would spend time contemplating laws instead of just throwing out whatever they wish and leave the citizen to spend hundreds of thousands of dollars and years to fight back, this wouldn’t be a problem. This is what happens when legislators abuse the assumption of constitutionality their acts have.

To add to @AJ’s comment here, taxpayers, PFRs, et al should be pissed the legislatures are spending their tax dollars this way initially without the thinking needed before passing out of committee these bills (regardless of the committee) and reaching the floors for voting. The governor bears responsibility too for signing the bill into law when they should veto it (but no one wants to spend political capital on doing the right thing when they’d rather roll the dice on no one noticing). Maybe the thinking falls on the taxpayer, PFRs, et al in the general public to notify the AG/committees/elected officials of their less than adequate thinking while showing them the errors of their ways with these bills because they cannot seem to do it.

At the same time, when these laws are challenged in court, then more taxpayer money is taken to fight them in court as long as it takes. Yes, the people are on the state payroll and thus, their wages are paid for regardless of what they are doing; however, they could be using their time and resources on more important issues that were considered more thoughtfully before instead of lackadaisical work like this. I will step of my soapbox now…

This isn’t such good news. The court declining to hear the case means they’ll be legal anywhere else outside of Louisiana.

It does not mean any such thing. They declined to hear it. they did not say it is fine in all states except… It will be up to the states and most states so far have not even tried it and many states wont even entertain the thought of it as they know it would be overturned in their state before it ever went into effect.

Oops, my mistake. I scanned the Louisiana SC decision and the argument was indeed based on the First Amendment of the U.S. constitution. SCOTUS certainly had jurisdiction in that case. And yes, this denial may dissuade other states from enacting other such laws. However, there is no guarantee that other state high courts would reach the same conclusion.

I’m actually relieved that SCOTUS denied cert. Had it decided that ID markings did not violate the First Amendment, all states would be free–assuming compliance with their constitutions–to put the scarlet letter on their IDs.

Veritas and appropriate apologies.

Jack you are almost correct. By denying cert, SCOTUS didn’t say that it was legal outside of Louisiana. Rather this means that it is not illegal for other states to brand driver licenses, in accordance with state constitutions. It is sort of like SCOTUS saying, “no comment.” I realize that is putting a fine point on the issue. Since SCOTUS offered no guidance as to why it denied cert, any inferences would be mere speculation. There is no direct effect on any state other than Louisiana.

I’ve not read the state SC decision (nor do I intend to). If it was based solely on the state constitution and was not at odds with the federal constitution or law, SCOTUS may not even have jurisdiction. In other states, registrants are free to challenge in the state courts, or in the federal courts based on a violation of the U.S. Constitution, e.g. compelled speech. In the latter case, the challenge may eventually bubble up to SCOTUS.

Veritas.

A very good article, Ditto. Jacob Sullum summarizes registry issues nicely.

@Jack:
You have it exactly backwards. It means other States doing this need to sit up and pay attention–and perhaps expect some lawsuits to land in their laps PDQ.

Here is an additional source:

Every State is different when it comes to this sex registry issue. These special Id cards or these dog tags for this and that. One wonders when they are gonna issue ID’s cards for the most brainy, the most smartest, the most violent, or who lacks wisdom today. Who is shooting who in the pants. Much of this registry is a come on tactic. Sex is the most common of all sins. Giving out superlatives is a bad judgement call for anyone. That would be a bit bias. Peoples personal business is their own personal business as long as it doesn’t provoke anyone. Are law enforcement busybodies today. busibodies?
 
This article should tell everyone that much of this registry is a bit prudish. Now how can a sinner correct a sinner? No officer of true justice should bait a victim like this. It goes against their code of ethics no matter what they say.  Can everyone say “I’m as mad as hell and I’m not gonna take it anymore”.

I think it important to point out that SCOTUS has never issued an Opinion stating active notifications by the State regarding PFRs is okay. Indeed, in Smith SCOTUS said, “the notification system is a passive one: An individual must seek access to the information.”

So aside from it being compelled speech, a marked DL is not in any way supported by SCOTUS precedent. All the allowing of active notification is going on within the lower courts.

Furthermore, in the Sixth Circuit the Does v Snyder decision provides compelling precedent for regarding any additional requirements for people already registered as ex post facto. Any registrant facing this kind of requirement who was not required to do so at the time of first being registered has a very solid legal ground for challenging. Unfortunately, the wheels of justice work slowly, especially for registrants, and justice delayed is justice denied, but that shouldn’t stop you from challenging any license marking in court if you find it burdensome.

Every ex post registrants( except CA) could’ve challenged ex post abridging in the context of FTR, because of the lack of record as in KY v Padilla, and proven to FTR jury panels that the waiver signed was done completely absent their knowledge of potential later than increase. Sure the FTR jury may reject your argument based on the lack of evidence of obligation to register, but it won’t happen if registrants don’t protest. I guarantee when SCOTUS heard Brown V Board of Ed the mass congregation of similarly situated and assembled persons outside of the court made for a serious persuasion, so much so that court determined the wrong in it without reaching for the constitutional rights questions. They were simply forced to declare.. ” …the distinction intolerable. ” The registered have barely made a squeak as far a public demonstrations. The slow development has to do with the nature of states power to override self determination.

Emails sent to MS, OK, FL, and KS ACLU offices with the text below and specific alterations for those states. Would be nice if one of them took it on, but not sure they will with the legal topics they feel should be addressed in court. I don’t think TN got text on their DLs/IDs as was proposed in 2014. Tempted to send one to the GA ACLU office so they can send a warning shot across the GA movement’s bow to put something on their DLs/IDs. Maybe someone will step to be a Doe here or work with a private atty on the topic. Please feel free to use this if you want to voice your opinion on the matter at hand with each respective state or some facsimile of.
*****************

RE: ACLU Kansas to address KS DL/ID and “Registered Offender” marking

Sir/Ma’am,

Sex Offender markings on Drivers Licenses (DLs) and Identification Cards (IDs) have been found in two courts, i.e. Louisiana State Supreme Court and Middle District of Alabama Federal Court, to be unconstitutional. SCOTUS denied cert for Louisiana v Hill ( https://www.usatoday.com/story/news/politics/2021/10/04/supreme-court-declines-case-challenging-sex-offender-id-cards/5786899001/) staying the LA State Supreme Court ruling and Alabama v Doe (https://ecf.almd.uscourts.gov/cgi-bin/show_public_doc?2015cv0606-164) was found in the favor of the plaintiffs (Doe) in the Middle District of Alabama. While these are not binding precedent in any court outside of those two states, they are persuasive cases on the topic and would carry weight possibly in another court should they be used in a legal effort to remove markings from DLs/IDs. 

This brings me to Kansas and their related marking of “Registered Offender” on their DLs/IDs for those people who are forced to register on their sex offender registry. While it is not a hot topic of the day that one would want to take on like immigrant rights or another hot political topic, it is a constitutional topic that needs to be addressed. Those Kansans who are forced to register do not need a compelled speech marker on their DLs/IDs while they are used in public for the most basic of things, e.g. voting, banking, buying alcohol/tobacco, etc. This compelled speech is in violation of the First Amendment of the US Constitution, as seen in the court rulings. Frankly, there does not need to be any markers on DLs/IDs, least restrictive or not. Law Enforcement should know from their “wants/warrants” check the status of the person. Criminal history is not needed on any DL/ID. If it is allowed for people forced to register, then where will it stop if someone wants to be another marker on the DL/ID for another crime conviction that the public concerns itself with, e.g. DUI, assault, theft, etc.

Given the second case on this matters finds in favor of the people who are impacted by the compelled speech marker, it is time for the Kansas ACLU to address this matter for these people using the persuasive precedent set in a court of your choosing.  

Regards,

An American for Constitutional Laws

Very nice writing…( TS ) And draft ing out all the points. My thinking is If Scotus don’t want too take it up. Than they have all sided with the lower courts on the matter at hand. So use that power in other states. And again TS you can write and draft very very will !!!!! Not saying any of you other brothers out there can’t write ok Saddles or Tim or anyone else. Remember the pen is mightier than the sword to win cases.

KS ACLU actually replied to inform me they will look at it and let me know. Hope they run with it. Advocate people…

I live in Louisiana and the ruling has lifted weight off my shoulders. I now show my ID without worry when I need to do all the things involving a license. Which is a lot. The state tried to add tiers to the front in a bill that was killed by the department of safety. The main reason was because our people showed up and spoke out. A mother spoke out about her son who had been in a relationship with someone who was not old enough for consent. They have been married for a decade now and still, he must be punished for that. “Mama was right colonel sanders”.

  So the bottom line is fair and equal justice for all. Should I and I use myself for example get the same treatment as opposed to one that actually did something physical. This internet vs physical situations, how cosmopolitan.. brings up a whole set of problems. Even the labeling and special ID’s need some adducated adjustment. What degree of honor does one uphold in being ordained if government goes above the supreme?

  Why do you suppose they give one a plea deal after the fact or before the fact, [snip]. While government has the power in many ways they are prosecuting their own evil and standards of justice or who is the supreme authority? So who is blind or who is leading the blind. Justice for one is justice for all in much of this whole registry labeling, tier factor ordeal
[snip]

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