The state of Louisiana has appealed to the U.S. Supreme Court, contending that its state law requiring convicted sex offenders to carry a card that identifies them as such in capital letters does not violate the First Amendment, but instead constitutes permissible government speech.
Last October, the Louisiana Supreme Court ruled in State v. Hill that the state law violates the First Amendment, because it amounts to unconstitutional compelled speech. The case involves Tazin Hill, who had pleaded guilty back in 2010 to the crime of “felony carnal knowledge of a juvenile.” In 2016, a law enforcement official noticed that the words “SEX OFFENDER” had been removed from Hill’s identification card. Authorities charged Hill under a criminal law that prohibits altering the sex-offender ID cards with the intent to defraud.
Hill successfully challenged both laws – the requirement that he carry a sex-offender ID card in the first place, and the law prohibiting fraudulently altering the card. The Louisiana Supreme Court held that “[t]he requirement that the offender have ‘sex offender’ written on his official state identification is not the least restrictive way to further the State’s legitimate interest of notifying law enforcement.”
In its cert. petition to the U.S. Supreme Court, Louisiana argues that the state-mandated ID card for convicted sex offenders is a form of government speech immune from free-speech scrutiny. Under the government-speech doctrine, the government can engage in its own speech. If something is classified as government speech, a First Amendment challenge fails.
Louisiana argues that “the ID card falls outside the ambit of First Amendment protections.” Hill had argued that forcing someone to carry a card with the message “SEX OFFENDER” amounts to compelled speech. His legal team cited the U.S. Supreme Court decision Wooley v. Maynard (1977), in which the high court ruled that punishing a driver for affixing a piece of red tape over New Hampshire’s “LIVE FREE OR DIE” motto on his license plate violated the First Amendment.
Hill argued that just as the state of New Hampshire could not force someone to display “LIVE FREE OR DIE,” he should not be compelled to carry a card that reads “SEX OFFENDER.”
Louisiana disagreed, finding that the ID card, unlike the license plate at issue in Wooley, “is not a billboard-like public display.” Instead, Louisiana says the label “SEX OFFENDER” is more akin to the “In God We Trust” inscription on currency, because currency is generally not on display.
Furthermore, the state contends that the sex-offender ID cards further essential operations of the government by protecting the public from sex offenders. The state argues that the lower court decision “unsettles Louisiana’s statutory scheme to monitor sex offenders and protect the public from them.”
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).