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).

4 thoughts on “Compelled Speech Doctrine Should Apply in Challenges to Sex Registration Laws

  1. With respect to US v Arnold, (Fifth Circuit 2014): what evidence did the government present to convict the defendant? The absence of his words in what would otherwise be compelled speech regarding criminal investigation(s)? Legislatively, is it not required that authorities investigate the registrant’s information?
    How can reasonable jurists be so blinded by the glaring unconstitutional practices of SORNA? The SC has a long history of cognitive dissonance when it comes to protecting the so-called “least among us”. Dred Scott v. Sandford; Plessy v. Ferguson; Buck v. Bell (1927).
    The Court stated the government was conducting a “essen-tial operation[] of [the] government,”. Where in the Constitution is that? How is that for over 200 years the government got by just fine without it?

  2. People do have the right to remain silent, and cannot be forced to speak under any circumstance, and if so then they are forced, obviously. See traffic, and terry stops, People are not required to speak. The Act of Registering a persons information requires a person to speak against their will thus violating a Guaranteed Protected Activity of remaining silent and applied to the States through the Due Process Clause, and The Privileges and Immunities Clause of Article IV, Section 2 of the Constitution. Could it not be argued that the State has compelling interest in a traffic or terry stop? Is this not an “an essential operation of government”? Even in those situations a person has a right to remain silent. Therefor it can be concluded the States are creating a second class Citizen, and discriminating them, and forcing them to speak against their will.

  3. The mistake that Arnold and Fox made was relying on the United States Constitution and the 5th Amendment. The Georgia Supreme Court ruled in Elliot v. The State that one cannot be compelled to perform acts of self-incrimination. This decision states explicitly that the state constitution affords greater protections than the federal constitution, even though the clauses are almost identical. This is because the Georgia Constitution is interpreted according to original intent going back to 1877.
    Maybe this won’t kill the sex offender registry in Georgia, but it could leave it so lame as to be ineffective. Imagine reporting to the sheriff of the county as required, and instead of giving the required information, standing there silent
    Other states have this same provision interpreted in the same way. Those states could be sued for declaratory judgement as could Georgia.

  4. I agree. The criminal justice system, with its mental torture and destruction of life, is EVIL none should be compelled to participate in, against their will. But I adhere to a broader characterization of ‘registration’ as a substantial economic benefit to government. Exploitation. By right of ownership. Servitude.

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