Compelled Speech Doctrine Should Apply in Challenges to Sex Registration Laws

Forcing a person to register as a sex offender may violate the right to freedom of speech because it compels a person to engage in such speech about his/her crime. After all, the compelled-speech doctrine generally prohibits the government from mandating that individuals advance a particular ideology, salute an American flag or support a particular state motto.

Back in 1943, the U.S. Supreme Court created the compelled-speech doctrine in the celebrated case of West Virginia Board of Education v. Barnette, ruling that public school officials violated the First Amendment free-speech rights of two Jehovah Witness sisters by expelling them for refusing to salute the flag and recite the Pledge of Allegiance. In celebrated language, Justice Robert Jackson declared that, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

The court reiterated this sentiment several decades later when ruling that George and Maxine Maynard could cover up the New Hampshire motto “Live Free or Die” on their license plates with a piece of red tape. The court explained in Wooley v. Maynard (1977) that the state could not force an individual “to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”

Seemingly, this compelled-speech principle should apply to certain criminal laws, such as those imposed on sex offenders. Consider a law, such as the Sex Offender Registration and Notification Act (SORNA), which forces convicted sex offenders to register as sex offenders even after they have completed their sentences.

The Fifth U.S. Circuit Court of Appeals rejected such a compelled-speech First Amendment challenge to SORNA in United States v. Arnold (Fifth Circuit 2014). Luther Arnold, a convicted sex offender, claimed that SORNA compelled him to engage in speech that he did not want to, as he already had completed his criminal sentence and wanted to get on with his life. The Fifth Circuit recognized the importance of Barnette and Wooley in discussing the compelled speech doctrine, but rejected Arnold’s claim. Instead, the Fifth Circuit held that the government was conducting “an essential operation of government” in enforcing registration of sex offenders.

A federal district court in Kansas rejected a similar argument in United States v. Fox (2018). Robert Wesley Fox also argued that SORNA violated his First Amendment free-speech rights by compelling him to register as a sex offender. He claimed the law was substantially overbroad and not narrowly tailored because SORNA applied even to non-violent sex offenders like Fox instead of just violent sex offenders. “Yes, SORNA compelled Mr. Fox to speak,” the court wrote. “But the law serves a compelling government interest and does so in a narrowly tailored fashion. It does not offend the First Amendment.”

This line of reasoning would not apply with nearly the same force if SORNA or another sex registration law forced someone who committed a crime, that didn’t involve any sexual abuse of a child or another person, to register as a sex offender. For example, let’s say that state law lumps in “kidnapping” as a sexual offense. However, an individual was convicted of kidnapping but the alleged kidnapper — even if he or she took the child — did not engage in any improper or inappropriate sexual activity with the child. In this instance, the law would not be narrowly tailored at all.  It would compel someone to say to the world that s/he is a sex offender when s/he didn’t commit any type of sexual offense at all.  That seemingly would violate the compelled speech doctrine.

David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).

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