Sheriff Violated First Amendment by Posting “No Trick-or-Treat” Signs on Sex Offenders’ Front Yards

Start at McClendon, v. LongToday, the Eleventh Circuit ruled in favor of, as a result of Judge Frank Hull’s opinion, which was joined by Chief Judge William Pryor, Britt Grant, and Britt.

Two Butts County Sheriff’s Office deputies placed warning signs in front of residences of all 57 registered sexual offenders. The Sheriff was stopped from placing these signs on the front yards of three Butts County sex offenders before Halloween 2019. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff…. [W]We conclude that Sheriff warning signs constitute compelled government speech and violate homeowners’ First Amendment rights. Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion….

This warning sign was placed in front of the Butts County homes of every registered sex offender. It did not take into account whether or not the State has classified them as high-risk of recidivism. The deputies collected the signs on November 1….

Sheriff Long shared a message with his Facebook friends and included a photograph of the warning sign. The signs were not meant to be placed at the doorsteps of registered sexual offenders, Long explained. His message also represented that Georgia law forbids registered sex offenders from participating in Halloween …. Although it’s not in dispute, Georgia law allows registered sex criminals to participate Halloween.

First Amendment protection includes both freedom to speak and the right not to. Wooley v. Maynard (1977). The rights to talk and to abstain from speaking complement each other in the larger concept of individual freedom. This doctrine of compelled speech applies to both ideological and non-commercial factual speech. Riley v. Nat’l Fed’n of the Blind (1988); Nat’l Inst. of Family and Life Advocs. v. Becerra (2018).

WooleyThe Supreme Court ruled that the State of New Hampshire could not prosecute anyone for making a license plate with the State motto “Live Free or Die.” According to the Court, a state can’t “constitutionally make an individual participate in dissemination of an ideology message by displaying it in a manner and with the express intent that it be observed by the public.” New Hampshire’s statute, according to the Court of Appeals, “in essence requires” that respondents use their private property for the dissemination of the ideological message. If they do not comply with the requirement, they will be subject to a penality.

The case in question is identical. Wooley…. [T]He Sheriff demanded that private property be used as an affidavit. billboard to promote his ideologies, with the explicit purpose of being seen and read by the general public. …

The district court made two errors in concluding otherwise. It first ruled that for a compelled government Speech claim to be valid, the court must conclude that reasonable third parties would see the speech as being “endorsed” and that the plaintiff has failed to prove that the speech was offensive. Wooley contains no such requirement….

The district court also erred in deciding that plaintiffs could place yard signs on their property to disagree with warning signs. This would have the effect of resolving the original violation. It overlooks the fact that this is a forced display on private property of a government message in violation of the plaintiffs’ “right not to speak at all” and does not constitute endorsement of such message. In fact, yard signs displayed at one’s residence are “distinct” and “traditionally important media of expression. The residents should then be free to choose whether or not to use traditional speech media. [Note also that precisely the same argument as the district court’s was made by the dissent in Wooley, but didn’t carry the day. -EV] …

The government can “compel” you to do something.[s] speakers to utter or distribute speech bearing a particular message,” as the Sheriff does here, such a policy imposes a content-based burden on speech and is subject to strict-scrutiny review…. Thus, to be valid under the First Amendment, the placement of the warning signs must be a narrowly tailored means of serving a compelling state interest….

[T]The Sheriff is driven by the desire to protect children from sexual abuse. The yard signs do not have to be narrowly targeted in order to accomplish this goal.

The Sheriff’s Deputies put the signs in Butts County’s yards in 2018. Before placing the signs the Sheriff didn’t consider whether any of these registrants had been classified as Georgia likely to recidivate. Even though he admitted to it, he has never been in trouble with any registrant who had reoffended or had unauthorized contact with minors since his 2013 election. Butts County Sheriff does not have any evidence to prove that these registrants are a threat to trick-or treat children. It is up to the Sheriff to prove that the signs he has posted are not too narrowly tailored.

The signs do not fit the criteria for preventing children from being abused. Sheriff Long stated that each registered sex offender’s photograph and name can be found on the State of Georgia’s website and on the Butts County website. It also appears at Butts County’s administrative buildings and the Butts County Superior Court Clerk’s Office. This Sheriff made the entire sex-offender registry easily accessible through government sources. Residents no longer have to post the same information on private property. And, while “narrowly tailored” does not mean “perfectly tailored,” the Sheriff has not met his burden to show the yard signs were narrowly tailored, because he has not offered evidence that any of the yard signs would accomplish the compelling purpose of protecting children from sexual abuse….

The court also rejected the sheriff’s argument that the signs were placed on a publicly-owned easement (a right-of-way): “the Sheriff has not shown that a government entity—much less the Sheriff—owns a right-of-way in fee across the front yards where the plaintiffs reside.”

On Mark Yurachek’s victory, congratulations.