APPENDIX
`APPENDIX
`
`
`APPENDIX
`
`
`
`i
`APPENDIX
`TABLE OF CONTENTS
`Appendix A Denial of Motion for Stay of Judgment
`(December 10, 2020) . . . . . . . . . . . App. 1
`Appendix B Denial of Motion for Rehearing in
`Supreme Court of Louisiana
`(December 9, 2020) . . . . . . . . . . . . App. 4
`Appendix C Supreme Court of Louisiana Opinion
`(October 20, 2020). . . . . . . . . . . . . App. 6
`Appendix D District Court Transcript from
`Hearing on Motion to Quash
`(October 30, 2019). . . . . . . . . . . . App. 46
`Appendix E Bill of Information
`(April 10, 2017) . . . . . . . . . . . . . . App. 64
`
`
`
`Seventh District
`
`App. 1
`
`APPENDIX A
`
`Supreme Court
`STATE OF LOUISIANA
`New Orleans
`[SEAL]
`[Dated December 10, 2020]
`CHIEF JUSTICE
`BERNETTE J. JOHNSON
`JUSTICES
`First District
`WILLIAM J. CRAIN
`Second District
`SCOTT J. CRICHTON
`Third District
`JAMES T. GENOVESE
`Fourth District
`JAY B. MCCALLUM
`JEFFERSON D. HUGHES III Fifth District
`JOHN L. WEIMER
`Sixth District
`JOHN TARLTON OLIVIER
`CLERK OF COURT
`400 Royal St., Suite 4200
`NEW ORLEANS, LA 70130-8102
`TELEPHONE (504) 310-2300
`HOME PAGE http://www.lasc.org
`December 10, 2020
`Jeffrey Martin Landry,
`LOUISIANA DEPT OF JUSTICE
`P O Box 94005
`Baton Rouge, LA 70804-9005
`
`
`
`App. 2
`
`Shae Gary McPhee, Jr.,
`1000 Delaronde St
`New Orleans, LA 70114
`
`Elizabeth Baker Murrill,
`1885 N 3rd St
`Baton Rouge, LA 70802
`Re:
`STATE OF LOUISIANA V. TAZIN
`ARDELL HILL
`2020-KA-00323
`
`Dear Counsel:
`This is to advise that the Court took the following
`action on your Opposed Motion for Stay of Judgment
`Pending Disposition in the United States Supreme
`Court filed in the above-entitled matter.
`Stay denied.
`Johnson, C.J., not signing.
`Crain, J., would grant.
`With kindest regards, I remain,
`Very truly yours,
`Theresa McCarthy
`Second Deputy Clerk
`
`TM: TM
`ccs: Michael J. Gregory
`Keith A. Stutes
`Roya Renee Sadreddini
`Lafayette
`
`
`
`App. 3
`15th Judicial District Court: 160634 - Div:K
`Patrick L. Michot, Sr.
`
`
`
`App. 4
`
`APPENDIX B
`
`The Supreme Court of the State of Louisiana
`No.2020-KA-00323
`[Filed December 09, 2020]
`______________________________
`STATE OF LOUISIANA
`
`VS.
`
`))
`
`))
`
`)
`TAZIN ARDELL HILL
`______________________________)
`------
`IN RE: State of Louisiana - Appellant Plaintiff;
`Applying for Rehearing, Parish of Lafayatte 15th
`Judicial District Court Number(s) 160634;
`------
`
`December 09, 2020
`Application for rehearing denied.
`BJJ
`JLW
`JDH
`SJC
`JTG
`Crain, J., would grant application for rehearing.
`McCallum, J., would grant application for rehearing.
`
`
`
`App. 5
`Supreme Court of Louisiana
`December 09, 2020
`/s/
`Clerk of Court
`For the Court
`
`
`
`App. 6
`
`APPENDIX C
`
`Supreme Court of Louisiana
`[Filed: October 20, 2020]
`FOR IMMEDIATE NEWS RELEASE
`NEWS RELEASE #041
`FROM: CLERK OF SUPREME COURT OF
`LOUISIANA
`The Opinions handed down on the 20th day of
`October, 2020 are as follows:
`BY Genovese, J.:
`2020-KA-00323 STATE OF LOUISIANA VS. TAZIN
`ARDELL HILL (Parish of Lafayette)
`The district court’s declaration that
`the statutes are unconstitutional and
`the district court’s ruling granting
`defendant’s motion to quash are
`affirmed. AFFIRMED.
`Retired Judge James Boddie, Jr.,
`appointed Justice pro tempore, sitting
`for the vacancy in Louisiana Supreme
`Court District 4.
`Weimer, J., concurs and assigns
`reasons.
`Crain, J., dissents and assigns
`reasons.
`
`
`
`App. 7
`
`10/20/20
`SUPREME COURT OF LOUISIANA
`No. 2020-KA-0323
`STATE OF LOUISIANA
`VERSUS
`TAZIN ARDELL HILL
`ON APPEAL FROM THE FIFTEENTH
`JUDICIAL DISTRICT COURT, FOR THE
`PARISH OF LAFAYETTE
`GENOVESE, J.*
`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.
`
`*Retired Judge James Boddie, Jr., appointed Justice pro tempore,
`sitting for the vacancy in Louisiana Supreme Court District 4.
`
`
`
`App. 8
`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.
`FACTS AND PROCEDURAL HISTORY
`On April 10, 2017, the state filed a bill of
`information charging defendant, Tazin Ardell Hill, with
`altering an official identification card to conceal his
`designation as a registered sex offender, in violation of
`La. R.S. 15:542.1.4(C). Defendant pleaded not guilty
`and filed a motion to quash, contending that La. R.S.
`40:1321(J) and 15:542.1.4(C) are unconstitutional.
`Defendant argued that La. R.S. 40:1321(J) and
`15:542.1.4(C) violate
`the First Amendment1
`prohibition against compelled speech. In response, the
`state argued that defendant failed to meet his burden
`of proof in challenging the constitutionality of the
`statute. Additionally, the state alleged he lacked
`standing to challenge the requirement that he carry his
`branded identification card, as he was charged instead
`with altering it—not failing to carry it. Furthermore,
`the state asserted the alteration of his identification
`card lacked First Amendment protection for three
`reasons: (1) the statute regulates conduct, not speech;
`(2) regardless of the classification of the statute,
`defendant’s actions fell outside of First Amendment
`
`1 Defendant averred that the branded identification card
`requirements violated both
`the Louisiana and Federal
`constitutions’ prohibitions against compelled speech; however, it
`is the Federal jurisprudence that will be primarily cited herein.
`
`
`
`App. 9
`protection because they constituted speech integral to
`criminal conduct; and,
`(3) defendant acted
`fraudulently, and fraud is not protected speech.
`Additionally, the state argued the First Amendment
`did not permit him to engage in “self-help” by illegally
`altering the card. Finally, the state averred that, even
`if a strict scrutiny analysis was required, it was
`satisfied.
`On October 30, 2019, the district court provided a
`short statement quashing the state’s bill of information
`against defendant and holding that La. R.S. 40:1321(J)
`and La. R.S. 15:542.1.4(C) are facially unconstitutional.
`Specifically, the court stated:
`I found the statute to be unconstitutional. [T]he
`requirement that the offender have “sex
`offender” written on his official state
`identification is 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. Louisiana could use more discreet
`labels in the form of codes that are known to law
`enforcement.
`The state appealed.
`DISCUSSION
`Before we reach the merits of this case, we must
`address certain preliminary issues. Specifically, we
`must determine that the case is properly before this
`
`
`
`App. 10
`court2 and that defendant properly raised the
`constitutionality of the statute in the court below.
`Defendant properly challenged the constitutionality of
`the statutes in the court below.
`This court has held “that a constitutional challenge
`may not be considered by an appellate court unless it
`was properly pleaded and raised in the trial court
`below.” State v. Hatton, 07-2377, p. 13 (La. 7/1/08), 985
`So.2d 709, 718. In Hatton, this court described the
`challenger’s burden as a three-step analysis. “First, a
`party must raise the unconstitutionality in the trial
`court; second, the unconstitutionality of a statute must
`be specially pleaded; and third, the grounds outlining
`the basis of unconstitutionality must be
`particularized.” Id., 07-2377, p. 14, 985 So.2d at 719.
`Defendant has met this burden in this case.
`The statute requiring defendant to obtain and carry a
`branded identification card and the statute setting
`forth the penalties for altering that card are so
`interrelated as to be non-severable, thus allowing
`defendant to challenge the constitutionality of the
`obtain-and-carry provision of the statute although he
`is charged with altering the identification.
`Next, we must determine whether La. R.S.
`15:542.1.4(C), which sets forth the penalties for
`altering a branded identification card, is severable from
`
`2 Pursuant to La. Const. art. V, § 5(D), this case is directly
`appealable to this court. The facts of the offense are not before this
`court, as the trial court’s declaration of the statutes’
`unconstitutionality was made before trial.
`
`
`
`App. 11
`the obtain-and-carry provision found in La. R.S.
`40:1321(J). The severability of La. R.S. 15:542.1.4(C) is
`important because it determines whether defendant
`has standing to challenge the underlying obtain-and-
`carry provision found in La. R.S. 40:1321(J).
`the
`The state argues
`that a
`ruling on
`constitutionality of the obtain-and-carry provision is
`not essential, as the state did not charge defendant
`with violating the provision requiring him to obtain
`and carry a branded identification card. Instead, it
`charged him with altering an official identification
`document to conceal the designation that he is a
`registered sex offender, in violation of La. R.S.
`15:542.1.4(C). Defendant counters that the statutes are
`so interrelated as to be non-severable, which affords
`defendant the standing to challenge the underlying
`requirement to carry a branded identification card.
`As mentioned at the outset, defendant was charged
`with altering an official identification card to conceal
`the designation that he was a registered sex offender in
`volition of La. R.S. 15:542.1.4(C), which provides as
`follows:
`(1) Any person who either fails to meet the
`requirements of R.S. 32:412(I) or
`R.S. 40:1321(J), who is in possession of any
`document required by R.S. 32:412(I) or R.S.
`40:1321(J) that has been altered with the intent
`to defraud, or who is in possession of a
`counterfeit of any document required by R.S.
`32:412(I) or R.S. 40:1321(J), shall, on a first
`conviction, be fined not more than one thousand
`dollars and imprisoned at hard labor for not less
`
`
`
`App. 12
`than two years nor more than ten years without
`benefit of parole, probation, or suspension of
`sentence.
`The obtain-and-carry provision, La. R.S. 40:1321(J),
`states in its entirety:
`(1) Any person required to register as a sex
`offender with the Louisiana Bureau of Criminal
`Identification and Information, as required by
`R.S. 15:542 et seq., shall obtain a special
`identification card issued by the Department of
`Public Safety and Corrections which shall
`contain a restriction code declaring that the
`holder
`is a sex offender. This special
`identification card shall include the words “sex
`offender” in all capital letters which are orange
`in color and shall be valid for a period of one
`year from the date of issuance. This special
`identification card shall be carried on the person
`at all times by the individual required to register
`as a sex offender.
`(2) Each person required to carry a special
`identification card pursuant to this Subsection
`shall personally appear, annually, at a field
`office of the office of motor vehicles to renew his
`or her special identification card[,] but only after
`he or she has registered as an offender pursuant
`to R.S. 15:542 et seq. Reregistration shall include
`the submission of current information to the
`department and
`the verification of
`this
`information, which shall include the street
`address and telephone number of the registrant;
`the name, street address and telephone number
`
`
`
`App. 13
`of the registrant’s employer[;], and, any
`registration information that may need to be
`verified by the bureau. No special identification
`card shall be issued or renewed until the office of
`motor vehicles receives confirmation from the
`bureau, electronically or by other means, that
`the reregistration of the sex offender has been
`completed.
`(3) The provisions of this Subsection shall apply
`to all sex offenders required to register pursuant
`to R.S. 15:542 et seq., regardless of the date of
`conviction.
`(4) Whoever violates this Subsection shall be
`fined not less than one hundred dollars and not
`more than five hundred dollars, or imprisoned
`for not more than six months, or both.
`the
`“The
`test
`for severability
`is whether
`unconstitutional portions of the statute are so
`interrelated and connected with the constitutional
`parts that they cannot be separated without destroying
`the intention manifested by the legislature in passing
`the act.” State v. Baxley, 93-2159 (La. 2/28/94), 633
`So.2d 142, 144–45 (quoting State v. Azar, 539 So.2d
`1222, 1226 (La.), cert. denied, 493 U.S. 823, 110 S.Ct.
`82, 107 L.Ed.2d 48 (1989)).
`Here, La. R.S. 40:1321(J) is not so distinct from La.
`R.S. 15:542.1.4(C) as to be severable. The state must
`first prove as an element of the crime that defendant is
`required by La. R.S. 40:1321(J) or La. R.S. 32:412(I) to
`carry an identification card branded with the word “sex
`offender.” Louisiana Revised Statutes 15:542.1.4(C)
`
`
`
`App. 14
`applies only to people who are required to obtain and
`carry the branded identification card and criminalizes
`a person’s failure to comply with this requirement.
`Because La. R.S. 15:542.1.4(C) depends on the obtain-
`and-carry requirement for an understanding of its
`meaning, severing them would destroy the intention
`manifested by the legislature.
`Having found that defendant satisfied the initial
`hurdles presented by his case, we now address the
`merits.
`The requirement to carry a branded identification
`card constitutes compelled speech and does not
`survive a strict scrutiny analysis.
`the
`threshold
`question
`in
`assessing
`A
`constitutionality3 of the branded-identification card
`requirement is determining whether this obligation
`amounts to government speech or compelled speech. If
`compelled speech, the branded identification card faces
`strict scrutiny. If government speech, the branded
`identification card faces little to no scrutiny. This
`analysis necessarily involves a review of First
`Amendment jurisprudence as it relates to government
`speech and compelled speech.
`
`3 As a general matter, statutes are presumed constitutional, and
`any doubt is to be resolved in the statute’s favor. State v. Fleury,
`01-0871, p. 5 (La. 10/16/01), 799 So.2d 468, 472. “Constitutional
`scrutiny favors the statute. Statutes are presumed to be valid, and
`the constitutionality of a statute should be upheld whenever
`possible. State v. Brenner, 486 So.2d 101 (La.1986); State v. Rones,
`223 La. 839, 67 So.2d 99 (1953).” State v. Griffin, 495 So. 2d 1306,
`1308 (La. 1986).
`
`
`
`App. 15
`The First Amendment provides that “Congress shall
`make no law... abridging the freedom of speech.” U.S.
`Const. Amend. I. The First Amendment protects
`against prohibitions of speech, and also against laws or
`regulations that compel speech. “[T]he right of freedom
`of thought protected by the First Amendment against
`state action includes both the right to speak freely and
`the right to refrain from speaking at all. See Board of
`Education v. Barnette, 319 U.S. 624, 633–634, 63 S.Ct.
`1178, 1182–1183, 87 L.Ed. 1628 (1943)[.]” Wooley v.
`Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51
`L.Ed.2d 752 (1977).
`In Walker v. Texas Div., Sons of Confederate
`Veterans, Inc., infra, the United States Supreme Court
`announced a
`three-factor analysis
`to
`identify
`government speech. This framework considers (1) a
`medium’s history of communicating governmental
`messages, (2) the level of the public’s association
`between that medium of speech and the government,
`and (3) the extent of the government’s control over the
`message conveyed. In terms of how the Free Speech
`Clause affects government speech, the Walker court
`found as follows:
`When government speaks, it is not barred by the
`Free Speech Clause from determining the
`content of what it says. Pleasant Grove City v.
`Summum, 555 U.S. 460, 467–468, 129 S.Ct.
`1125, 172 L.Ed.2d 853 (2009). That freedom in
`part reflects the fact that it is the democratic
`electoral process that first and foremost provides
`a check on government speech. See Board of
`Regents of Univ. of Wis. System v. Southworth,
`
`
`
`App. 16
`529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d
`193 (2000). Thus, government statements (and
`government actions and programs that take the
`form of speech) do not normally trigger the First
`Amendment rules designed to protect the
`marketplace of ideas. See Johanns v. Livestock
`Marketing Assn., 544 U.S. 550, 559, 125 S.Ct.
`2055, 161 L.Ed.2d 896 (2005). Instead, the Free
`Speech Clause helps produce informed opinions
`among members of the public, who are then able
`to influence the choices of a government that,
`through words and deeds, will reflect its
`electoral mandate. See Stromberg v. California,
`283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117
`(1931)
`(observing that “our constitutional
`system” seeks to maintain “the opportunity for
`free political discussion to the end that
`government may be responsive to the will of the
`people”).
`Walker, 576 U.S. 200, 207, 135 S.Ct. 2239, 2245–46,
`192 L.Ed.2d 274 (2015). Nevertheless, the ability of the
`government to express itself is not without restriction,
`as other constitutional and statutory provisions may
`limit government speech.
`The Free Speech Clause itself may constrain
`government speech—for instance, in seeking to compel
`private persons to “convey the government’s speech.”
`Id., 576 U.S. at 208, 135 S.Ct. at 2246. “But, as a
`general matter, when the government speaks[,] it is
`entitled to promote a program, to espouse a policy, or to
`take a position. In doing so, it represents its citizens
`and it carries out its duties on their behalf.” Id.
`
`
`
`App. 17
`The state asserts the obtain-and-carry provision
`amounts to permissible government speech not
`regulated by the First Amendment for three primary
`reasons: (1) defendant is not required to publically
`display his state identification card “like a billboard;”
`(2) people viewing defendant’s state identification card
`are unlikely to conclude that defendant endorses the
`message “sex offender”; and, (3) requiring defendant to
`report basic facts on his state identification (including
`that he is a sex offender) is necessary to conduct
`essential operations of government. The state also
`argues that while people may be embarrassed about
`some information on their license, like their age or
`weight, this court has explained that “an imposition of
`restrictive measures on sex offenders adjudged to be
`dangerous is ‘a legitimate nonpunitive governmental
`objective and has been historically so regarded.’” State
`v. Trosclair, 11-2302, p. 13 (La. 5/8/12), 89 So.3d 340,
`349 (citing Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct.
`1140, 1147, 155 L.Ed.2d 164 (2003)).
`We do not find the state’s arguments persuasive. In
`Barnette, supra, the United States Supreme Court
`found that the children of Jehovah’s Witnesses could
`not be compelled by the school board to salute the flag
`and to pledge allegiance at school without violating the
`First Amendment. About 30 years later, Barnette was
`cited in the analysis in Wooley v. Maynard, supra,
`wherein the United States Supreme Court found that
`a Jehovah’s Witness driver in New Hampshire could
`not be punished by the state for repeatedly obscuring
`the state motto “Live Free or Die” on his license plate.
`Maynard was found guilty in state court of violating a
`misdemeanor statute on three separate charges. He
`
`
`
`App. 18
`refused to pay the mandated fines, which resulted in 15
`days in jail. Maynard and his wife then brought an
`action to enjoin the state from arresting and
`prosecuting them in the future. Ultimately, the United
`States Supreme Court held that the state could not
`“constitutionally require an individual to participate in
`the dissemination of an ideological message by
`displaying it on his private property in a manner and
`for the express purpose that it be observed and read by
`the public.” Id., 430 U.S. at 713, 97 S.Ct. at 1434–35.
`Furthermore “‘persons who observe’ designs on IDs
`‘routinely—and reasonably—interpret
`them as
`conveying some message on the [issuer’s] behalf.’”
`Walker, 576 U.S. at 212, 135 S.Ct. at 2249 (quoting
`Summum, 555 U.S. at 471, 129 S.Ct. at 1133). While
`the Supreme Court did not identify its standard of
`review, it clearly applied strict scrutiny to find that the
`driver could not be compelled by the government to
`display an
`ideological message with which he
`disagreed.
`However, compelled speech (or compelled silence)
`does not turn simply on whether an ideological
`message is at issue. In Riley v. National Federation of
`the Blind of North Carolina, Inc., 487 U.S. 781, 108
`S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court
`left the realm of the political and the religious and
`expanded its compelled speech doctrine to the realm of
`facts. Specifically, the United States Supreme Court
`noted that Wooley, amongst other cases, could not be
`distinguished simply because they involved compelled
`statements of opinion, while Riley dealt with compelled
`statements of fact: “[E]ither form of compulsion
`burdens protected speech.” Riley, 487 U.S. at 797–98,
`
`
`
`App. 19
`108 S.Ct. at 2678. While analyzing North Carolina’s
`content-based regulation governing the solicitation of
`charitable contributions by professional fundraisers,
`the United States Supreme Court noted:
`Thus, we would not immunize a law requiring a
`speaker favoring a particular government
`project to state at the outset of every address the
`average cost overruns in similar projects, or a
`law requiring a speaker favoring an incumbent
`candidate to state during every solicitation that
`candidate’s recent travel budget. Although the
`foregoing factual information might be relevant
`to the listener, and, in the latter case, could
`encourage or discourage the listener from
`making a political donation, a law compelling its
`disclosure would clearly and substantially
`burden the protected speech.
`Id., 487 U.S. at 798, 108 S.Ct. at 2678. It further
`observed, “[m]andating speech that a speaker would
`not otherwise make necessarily alters the content of
`the speech.” Id., 487 U.S. at 795, 108 S.Ct. at 2677.
`Thus, the court found that the North Carolina content-
`based regulation, wherein the state had adopted a
`“prophylactic rule of compelled speech, applicable to all
`professional solicitations[,]” was subject to exacting
`First Amendment scrutiny. Id., 487 U.S. at 798, 108
`S.Ct. at 2678. Ultimately, the court concluded the
`state’s interest in the importance of “informing donors
`how the money they contribute is spent to dispel the
`alleged misperception that the money they give to
`professional fundraisers goes in greater-than-actual
`proportion to benefit charity” was not as weighty as the
`
`
`
`App. 20
`state asserted. Id. Additionally, the chosen means to
`accomplish it was unduly burdensome and not
`narrowly tailored, as the state’s interest was not
`sufficiently related to a percentage-based test and not
`sufficiently tailored to such interests. Id. Government
`regulation of speech “must be measured in minimums,
`not maximums.” Id., 487 U.S. at 790, 108 S.Ct. at 2674.
`Therefore, the court found the regulation infringed
`upon freedom of speech.
`In Walker, supra, the United States Supreme Court
`observed that “specialty license plates issued pursuant
`to Texas’s statutory scheme conveyed government
`speech.” Walker, 576 U.S. at 208, 135 S.Ct. at 2246.
`Relying on its analysis from Summum, the court first
`noted that, “the history of license plates shows that,
`insofar as license plates have conveyed more than state
`names and vehicle identification numbers, they long
`have communicated messages from the States.” Walker,
`576 U.S. at 210–11, 135 S.Ct. at 2248. Furthermore,
`the “Texas license plates designs ‘are often closely
`identified in the public mind with the [State].’” Id., 576
`U.S. at 212, 135 S.Ct. at 2248 (quoting Summum, 555
`U.S. at 472, 129 S.Ct. at 1133). The plates serve the
`governmental purpose of vehicle registration and
`identification, and the governmental nature is clear
`from their faces. Id. Further, Texas requires all vehicle
`owners to display license plates, Texas issues every
`license plate, and Texas owns the designs (including
`the patterns and designs proposed by organizations
`and private individuals). Id. Texas even dictates the
`procedure for disposing of them. Id. Thus, “Texas
`license plates are, essentially, government IDs. And
`issuers of ID ‘typically do not permit’ the placement on
`
`
`
`App. 21
`their IDs of ‘message[s] with which they do not wish to
`be associated.’” Id., 576 U.S. at 212, 135 S.Ct. at 2249
`(citing Summan, supra, at 471, 129 S.Ct. at 1133). The
`court noted that Texas “maintains direct control over
`the messages conveyed on its specialty plates[,]”
`allowing Texas to choose how to present itself and its
`constituency. Id., 576 U.S. at 213, 135 S.Ct. at 2249.
`The court also noted that there are other features on
`the Texas specialty license plates that also indicate
`that the message conveyed by those designs is conveyed
`on behalf of the government. Texas selects each design,
`and presents these designs on “government-mandated,
`government-controlled, and government-issued IDs
`that have traditionally been used as a medium for
`government speech.” Id., 576 U.S. at 214, 135 S.Ct. at
`2250. Furthermore, it also places the designs directly
`below the large letters identifying “Texas” as the issuer
`of the IDs. “The [designs] that are accepted, therefore,
`are meant to convey and have the effect of conveying a
`government message, and they thus constitute
`government speech.” Id., 576 U.S. at 214, 135 S.Ct.at
`2250 (quoting Summum, 555 U.S. at 472, 129 S.Ct. at
`1134).
`However, the United States Supreme Court also
`explicitly noted that its “determination that Texas’s
`specialty license plate designs are government speech
`does not mean that the designs do not also implicate
`the free speech rights of private persons. We have
`acknowledged that drivers who display a State’s
`selected license plate designs convey the messages
`communicated through those designs.” Id., 576 U.S. at
`219, 135 S.Ct. at 2252 (citing Wooley, 430 U.S. at 717
`
`
`
`App. 22
`n.15, 97 S.Ct. at 1436). Furthermore, the court
`recognized the following:
`[W]e have recognized that the First Amendment
`stringently limits a State’s authority to compel
`a private party to express a view with which the
`private party disagrees. But here, compelled
`private speech is not at issue. And just as Texas
`cannot require SCV to convey ‘the State’s
`ideological message,’ SCV cannot force Texas to
`include a Confederate battle flag on its specialty
`license plates.
`Id., 576 U.S. at 219, 135 S.Ct. at 2253 (citations
`omitted).
`Thus, while license plate designs are government
`speech, it is possible that government speech can
`implicate private speech interests. Returning to
`Wooley, the issue was whether the government’s
`message is “readily associated” with the private person
`compelled to propound it. Wooley, 430 U.S. at 717 n.15,
`97 S.Ct. at 1436. Even more so than a license plate on
`a car, an identification card is personalized to such an
`extent that it is readily associated with the bearer.4
`
`4 Additionally, the Wooley court noted that currency differs in
`significant respects from an automobile. Currency, while passed
`from hand to hand, is not as readily associated with its operator,
`like an automobile. Thus, while “[c]urrency is generally carried in
`a purse or pocket and need not be displayed to the public[,]” [and]
`“[t]he bearer of currency is thus not required to publicly advertise
`the national motto,” it differs in significant respects from a
`personal identification card as well. Id. Although not displayed as
`
`
`
`App. 23
`We find instructive a recent ruling by a federal
`district court in Alabama, which determined that a
`branded-identification requirement unconstitutionally
`compels speech. The ruling in Doe 1 v. Marshall, 367
`F.Supp.3d 1310 (M.D. Ala. Feb. 11, 2019), pertained to
`the Alabama Sex Offender Registration and
`Community Notification Act (“ASORCNA” or “the Act”),
`which applied to adult offenders convicted of any of 33
`infractions designated as sex offenses under Alabama
`law. There, a sex offender must abide by certain
`registration and notification requirements and must
`carry a branded identification card. Those registrant-
`specific identifications must bear the inscription
`“criminal sex offender” in bold, red letters, which
`enable law enforcement to identify the licensee as a sex
`offender.
`In February 2019, the Alabama court granted
`summary judgment for the plaintiffs on the as-applied
`compelled speech challenge, declaring that the branded
`identification requirement under Alabama law was
`unconstitutional under the First Amendment. It
`specifically found that the branded identification
`requirement unnecessarily compels speech, and it was
`not the least restrictive means of advancing a
`compelling state interest. Id. at 1324. The court, citing
`to Cressman v. Thompson, 798 F.3d 938, 949–51 (10th
`Cir. 2015), observed there was a four-part test to
`determine whether the state has compelled speech.
`“There must be (1) speech; (2) to which the plaintiff
`
`prominently as a billboard or a license plate, an identification card
`is not as pervasive yet unnoticed as currency either, and often
`must be displayed to handle every day, mundane duties.
`
`
`
`App. 24
`objects; (3) that is compelled; and[,] (4) that is readily
`associated with the plaintiff.” Id. The court found all
`four elements were satisfied. Id.
`First, comparing the words “criminal sex offender”
`to the “Live Free or Die” license plate in Wooley, supra,
`the court found there was speech. Id. The court further
`observed that while the branded identification cards
`involved government speech, that designation did not
`immunize it from a compelled speech analysis. While
`no one can force the state to print a specific design on
`a license plate, like in Walker, supra, neither can the
`state force someone to display a certain message on
`their license plate, like in Wooley. Id. at 1325.
`Next, the Doe I court recognized that the plaintiffs
`strongly objected to the message on their identification
`card, but they were compelled to display the message.
`Carrying and displaying identification is a virtual
`necessity in contemporary society; and, thus, the court
`found the branded identification comparable to Wooley,
`where a license plate is both required by the state and
`required to be displayed to others. Id. Furthermore, the
`message on the branded
`identification card
`is
`associated with the plaintiffs, as the cards are “chock-
`full of Plaintiffs’ personal information[.]” Id. at 1326.
`Additionally, much like how Maynard in Wooley was
`associated with his vehicle, the plaintiffs here were
`associated with their drivers licenses. The court noted,
`“[t]he dirty looks that Plaintiffs get are not directed at
`the State.” Id. The court also differentiated between
`identification cards and currency, as a person is not
`identified with their currency, which is not displayed,
`but rather exchanged. Identification cards are
`
`
`
`App. 25
`personalized and never meant to be given away, unlike
`currency. Id.
`The Doe I court determined that the branded
`identification requirement compelled speech and
`imposed a content-based regulation on speech;
`therefore, the requirement must pass strict scrutiny.
`Id. While noting that the state has a compelling
`interest in identifying a person as a sex offender, it
`found that Alabama had not adopted the least
`restrictive means of doing so, such as using a single
`letter that law enforcement would know but the
`general public would not, and therefore it went beyond
`what was necessary to achieve that interest. Id. at
`1326–27. Thus, the court found the statute, as applied
`by the state, unconstitutional. Id.
`Also noteworthy is the case from the northern
`district of California, which is helpful in our analysis.
`That case pertained to the International Megan’s Law
`(“IML”) codified in 34 U.S.C. § 21501 et seq., requiring
`that passports issued to sex offenders convicted of a sex
`offense against a minor display a unique identifier
`indicating the bearer’s conviction. Doe v. Kerry, No. 16-
`cv-0654-PJH, 2016 WL 5339804 (N.D. Cal. Sept. 23,
`2016). The plaintiffs in that case challenged
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