Special IDs for Sex Offenders: Safety Measures or Scarlet Letters?

WASHINGTON — A Louisiana law required people convicted of sex crimes to use driver’s licenses on which the words “sex offender” would appear in big capital orange letters under their photographs.

That could make everyday encounters — with bank tellers, hotel clerks, supermarket cashiers, election officials, airport security officers and prospective employers — humiliating. Critics called the notation a modern-day scarlet letter. State officials said it kept the public safe from predators.

The Louisiana Supreme Court struck down the law last year, saying it violated the First Amendment. State officials have asked the U.S. Supreme Court to hear the case, one that presents important questions about public policy and First Amendment doctrine.

Sex offenders are subject to countless restrictions under state and federal laws, notably by having to list their addresses on public registries available on the internet. In a petition seeking Supreme Court review, state officials said that was not enough and that the special IDs provided an extra measure of security.

“Under the Louisiana Supreme Court’s decision, the public will lack an essential tool for identifying sex offenders in the community,” the state’s petition said. “Online registries are insufficient to protect the state’s interests because people can easily give a false name and deny their status. During storms and other emergencies, power outages and interrupted internet connections may make it impossible to check the online registry.”

The petition gave examples of why state ID cards should bear the notation, some more compelling than others. “People trick-or-treating on Halloween may need a quick way to verify that their children are safe from predators,” the brief said, though asking to see ID before accepting candy is not commonplace.

Early in the case, at a 2019 hearing before a trial judge, a lawyer for the state described a more plausible setting in which the notation could prove useful.

“If I’m deciding who I want to be my babysitter,” said the lawyer, Shae McPhee, “and I know that I don’t want a sex offender to babysit my children, I say, ‘OK, I’d like to see your ID before I allow you to babysit my children.’ And, ‘Oh, it says sex offender, I’m not going to hire you.’”

The case concerned Tazin Hill, who was released from prison in 2013 after serving a sentence for having sex with a 14-year-old girl when has was 32. Three years later, while visiting a sheriff’s office to update his address for the state’s sex offender registry, a police officer noticed that something was amiss with his state ID. The words “sex offender” had been removed.

Mr. Hill was charged with fraudulently altering the ID to hide his sex-offender status. He objected on First Amendment grounds, and the trial judge ruled in his favor, immediately, from the bench.

Judge Patrick L. Michot, of the 15th Judicial District Court in Lafayette, La., said the notation was “not the least restrictive way to further the state’s legitimate interest of notifying law enforcement.”

“It could be accomplished in the same way that some other states utilize,” he said. “Louisiana could use more discreet labels in the form of codes that are known to law enforcement.”

Of the nine states that call for some sort of disclosure of sex-offender status on state ID cards, Louisiana and four others require all registered offenders to have cards with a variation of the words “sex offender,” according to a brief filed by Mr. Hill’s lawyers. Others use codes or symbols recognizable to law enforcement officials.

The Louisiana Supreme Court agreed with Judge Michot, relying on U.S. Supreme Court decisions forbidding the government to compel speech.

In 1977, for instance, the court ruled that New Hampshire could not require people to display plates bearing the state’s motto, “Live Free or Die,” saying that George Maynard, a Jehovah’s Witness, should not have been prosecuted for covering the motto with duct tape.

Whether the U.S. Supreme Court agrees to hear the case, Louisiana v. Hill, No. 20-1587, may turn on whether the justices think the lower courts have disagreed on the central legal question it presents. In the most directly analogous case, a federal trial judge in Alabama in 2019 struck down a law very much like the one in Louisiana for essentially the same reasons.

On the other hand, Judge Phyllis J. Hamilton of the Federal District Court in Oakland, Calif., in 2016 rejected a challenge to a federal law requiring passports to identify people convicted of sex offenses involving minors.

Notations on passports are the government’s speech, Judge Hamilton wrote, and the government can generally say whatever it wants to. “It is not the speech of the passport holder that is at issue, any more than the speech of the holder of a government-issued identification card is at issue with regard to identifiers such as name, date of birth, height, weight or eye color,” she wrote.

More recently, in December, Judge Marc T. Treadwell of the Federal District Court in Macon, Ga., rejected a First Amendment challenge to a sheriff’s practice of putting signs in front of the homes of registered sex offenders on Halloween.

The signs were not compelled speech, Judge Treadwell wrote, as nobody thinks “the resident agreed with the sign’s message: that trick-or-treating at their residence was dangerous.” He added that the residents could use their free speech rights “by posting competing messages.”

By contrast, he wrote, the Louisiana law “prohibiting alterations of a driver’s license made it practically impossible for the criminal defendant to disassociate from the message or disclaim the message without facing prosecution.”

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