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October 21, 2020

Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment

I am grateful to a reader for making sure I did not miss the ruling yesterday of the Supreme Court of Louisiana in Louisiana v. Hill, No. 2020-KA-00323 (La. Oct. 20, 2020) (available here). The start of the majority opinion captures its essence:

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana.  Other states (and the federal government) have enacted similar collections of laws.  However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country.  Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis.  Thus, we uphold the trial court’s ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the “SEX OFFENDER” designation.

The lone dissenting vote was by Justice Crain, who wrote a short dissenting opinion that starts this way:

The majority finds it unconstitutional to require a convicted sex offender to be identified as such on a government-issued identification card.  Louisiana Revised Statutes 40:1321J requires a registered sex offender to procure a special identification card that includes the words “sex offender” in all capital, orange letters.  That phrase is the speech at issue. It is not First Amendment protected speech.  The speaker is the government: the words are stamped by a governmental agency on a government-issued identification card in accordance with a government-enacted statute.  This is the embodiment of government speech.

October 21, 2020 at 11:44 AM | Permalink

Comments

Compliments to Michael Gregory, a Felony Public Defender in Lafayette Louisiana at the time his motion to quash was granted in the District Court. Michael is not working at one of our Capital Defense Firms, LCAC in New Orleans. He filed the Motion to Quash and based it on the First Amendment. The Trial Judge ruled in his favor so the case having found a statute Unconstitutional, went directly to the Supreme Court. Conservative as they are, the court supported the district court. Somewhat to our surprise because our Habitual Offender, Sex Offender Registration, and other regulations are generally very brutal.

This demonstrates that Public Defenders can have an impact broader than helping clients one by one, because often that one case raises issues more broadly important to Criminal Justice. Well Done!

Posted by: G Paul Marx | Oct 23, 2020 2:46:59 PM

Simply unjust for those that served their time. What about the "privileged" that never serve time? If they are a danger to the public, I am sure they are being watched or shouldn't have been released.

Posted by: LC in Texas | Oct 23, 2020 5:55:56 PM

Hi, sex offender retroactive registration before such sex laws being enforced is also Unconstitutional.

Posted by: GARY | Nov 14, 2020 5:26:21 AM

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