No. 20A________
`
`In the Supreme Court of the United States
` 
` 
` 
` 
`STATE OF LOUISIANA,
`
`
`
`
`
`
`
`
`Applicant,
`
`v.
`TAZIN ARDELL HILL
`
`
`
`
`
`
`
`
`Respondent.
`
`
`
`
`
`APPLICATION FOR A STAY PENDING DISPOSITION OF PETITION FOR
`CERTIORARI TO THE LOUISIANA SUPREME COURT
`
`
`
`
`To the Honorable Samuel A. Alito
`Associate Justice of the Supreme Court of the United States and
`Circuit Justice for the Fifth Circuit
`
`
`
`
`
`
`APPENDIX
`
`
`Denial of Motion for Stay of Judgment (December 10, 2020)……………………….001a
`Denial of Motion for Rehearing in Supreme Court of Louisiana
` (December 9, 2020)……………………………………………………………………….003a
`Supreme Court of Louisiana Opinion (October 20, 2020)…………….………………004a
`District Court Transcript from hearing on Motion to Quash
` (October 30, 2019).…..………………………………………………………………..….034a
`Bill of Information (April 10, 2017).…………………………………..………..……….055a
` 
`
`

`

`
`
`CHIEF JUSTICE
` BERNETTE J. JOHNSON
`JUSTICES
` WILLIAM J. CRAIN
` SCOTT J. CRICHTON
` JAMES T. GENOVESE
` JAY B. MCCALLUM
` JEFFERSON D. HUGHES III
` JOHN L. WEIMER
`
`Seventh District
`
`First District
`Second District
`Third District
`Fourth District
`Fifth District
`Sixth District
`
`Supreme Court
`STATE OF LOUISIANA
`New Orleans
`
`December 10, 2020
`
`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
`
`Jeffrey Martin Landry,
`LOUISIANA DEPT OF JUSTICE
`P O Box 94005
`Baton Rouge, LA 70804-9005
`
`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 VS. 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.
`
`001a
`
`

`

`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
`15th Judicial District Court: 160634 - Div:K
`Patrick L. Michot, Sr.
`
`002a
`
`

`

`(cid:20)(cid:21)(cid:18)(cid:19)(cid:28)(cid:18)(cid:21)(cid:19)(cid:21)(cid:19)(cid:3)(cid:179)(cid:54)(cid:72)(cid:72)(cid:3)(cid:49)(cid:72)(cid:90)(cid:86)(cid:3)(cid:53)(cid:72)(cid:79)(cid:72)(cid:68)(cid:86)(cid:72)(cid:3)(cid:19)(cid:23)(cid:27)(cid:3)(cid:73)(cid:82)(cid:85)(cid:3)(cid:68)(cid:81)(cid:92)(cid:3)(cid:38)(cid:82)(cid:81)(cid:70)(cid:88)(cid:85)(cid:85)(cid:72)(cid:81)(cid:70)(cid:72)(cid:86)(cid:3)(cid:68)(cid:81)(cid:71)(cid:18)(cid:82)(cid:85)(cid:3)(cid:39)(cid:76)(cid:86)(cid:86)(cid:72)(cid:81)(cid:87)(cid:86)(cid:17)(cid:180)
`
`(cid:55)(cid:75)(cid:72)(cid:3)(cid:54)(cid:88)(cid:83)(cid:85)(cid:72)(cid:80)(cid:72)(cid:3)(cid:38)(cid:82)(cid:88)(cid:85)(cid:87)(cid:3)(cid:82)(cid:73)(cid:3)(cid:87)(cid:75)(cid:72)(cid:3)(cid:54)(cid:87)(cid:68)(cid:87)(cid:72)(cid:3)(cid:82)(cid:73)(cid:3)(cid:47)(cid:82)(cid:88)(cid:76)(cid:86)(cid:76)(cid:68)(cid:81)(cid:68)(cid:3)
`
`STATE OF LOUISIANA
`
`VS.
`
`TAZIN ARDELL HILL
`
`No.2020-KA-00323
`
`_ _ _ _ _ _
`
`IN RE: State of Louisiana - Appellant Plaintiff; Applying for Rehearing, Parish of
`Lafayette, 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.
`
`Supreme Court of Louisiana
`December 09, 2020
`
`0
`
`Clerk of Court
`ClCCCCCC erk offfff Court
`For the Court
`FoFoFoFoForrrrr thththththeeee CoCoCoCoururururtt
`
`003a
`
`

`

`$>upreme QCourt of JLoutstana
`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.
`
`004a
`
`

`

`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. 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).
`
`*(cid:3) Retired Judge James Boddie, Jr., appointed Justice pro tempore, sitting for the vacancy in(cid:3)
`Louisiana Supreme Court District 4.
`
`005a
`
`

`

`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 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.
`
`
`1 Defendant averred that the branded identification card requirement violated both the Louisiana
`and Federal constitutions’ prohibitions against compelled speech; however, it is the Federal
`jurisprudence that will be primarily cited herein.
`2 of 23
`
`
`
`006a
`
`

`

`
`
`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 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 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).
`
`
`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.
`
`3 of 23
`
`
`
`007a
`
`

`

`The state argues that a ruling on the 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 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
`of the registrant’s employer[;], and, any registration information that
`4 of 23
`
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`008a
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`

`

`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 test for severability is whether the 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)
`
`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.
`
`
`
`
`5 of 23
`
`009a
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`

`

`A threshold question in assessing the 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.
`
`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
`
`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).
`
`6 of 23
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`010a
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`

`(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, 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.
`
`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
`
`
`
`7 of 23
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`011a
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`

`

`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 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
`8 of 23
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`012a
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`

`

`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, 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
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`compelled speech, applicable to all professional solicitations[,]” was subject to
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`exacting First Amendment scrutiny. Id., 487 U.S. at 798, 108 S.Ct. at 2678.
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`Ultimately, the court concluded the state’s interest in the importance of “informing
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`donors how the money they contribute is spent to dispel the alleged misperception
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`that the money they give to professional fundraisers goes in greater-than-actual
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`proportion to benefit charity” was not as weighty as the state asserted. Id.
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`Additionally, the chosen means to accomplish it was unduly burdensome and not
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`narrowly tailored, as the state’s interest was not sufficiently related to a percentage-
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`based test and not sufficiently tailored to such interests. Id. Government regulation
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`of speech “must be measured in minimums, not maximums.” Id., 487 U.S. at 790,
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`108 S.Ct. at 2674. Therefore, the court found the regulation infringed upon freedom
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`of speech.
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`
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`In Walker, supra, the United States Supreme Court observed that “specialty
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`license plates issued pursuant to Texas’s statutory scheme conveyed government
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`speech.” Walker, 576 U.S. at 208, 135 S.Ct. at 2246. Relying on its analysis from
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`Summum, the court first noted that, “the history of license plates shows that, insofar
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`as license plates have conveyed more than state names and vehicle identification
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`numbers, they long have communicated messages from the States.” Walker, 576
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`U.S. at 210–11, 135 S.Ct. at 2248. Furthermore, the “Texas license plates designs
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`‘are often closely identified in the public mind with the [State].’” Id., 576 U.S. at
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`212, 135 S.Ct. at 2248 (quoting Summum, 555 U.S. at 472, 129 S.Ct. at 1133). The
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`plates serve the governmental purpose of vehicle registration and identification, and
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`the governmental nature is clear from their faces. Id. Further, Texas requires all
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`vehicle owners to display license plates, Texas issues every license plate, and Texas
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`owns the designs (including the patterns and designs proposed by organizations and
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`private individuals). Id. Texas even dictates the procedure for disposing of them. Id.
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`Thus, “Texas license plates are, essentially, government IDs. And issuers of ID
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`‘typically do not permit’ the placement on their IDs of ‘message[s] with which they
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`do not wish to be associated.’” Id., 576 U.S. at 212, 135 S.Ct. at 2249 (citing
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`Summan, supra, at 471, 129 S.Ct. at 1133). The court noted that Texas “maintains
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`direct control over the messages conveyed on its specialty plates[,]” allowing Texas
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`to choose how to present itself and its constituency. Id., 576 U.S. at 213, 135 S.Ct.
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`at 2249. The court also noted that there are other features on the Texas specialty
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`license plates that also indicate that the message conveyed by those designs is
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`conveyed on behalf of the government. Texas selects each design, and presents these
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`designs on “government-mandated, government-controlled, and government-issued
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`IDs that have traditionally been used as a medium for government speech.” Id., 576
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`U.S. at 214, 135 S.Ct. at 2250. Furthermore, it also places the designs directly below
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`the large letters identifying “Texas” as the issuer of the IDs. “The [designs] that are
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`accepted, therefore, are meant to convey and have the effect of conveying a
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`government message, and they thus constitute government speech.” Id., 576 U.S. at
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`214, 135 S.Ct.at 2250 (quoting Summum, 555 U.S. at 472, 129 S.Ct. at 1134).
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`
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`However, the United States Supreme Court also explicitly noted that its
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`“determination that Texas’s specialty license plate designs are government speech
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`does not mean that the designs do not also implicate the free speech rights of private
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`persons. We have acknowledged that drivers who display a State’s selected license
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`plate designs convey the messages communicated through those designs.” Id., 576
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`U.S. at 219, 135 S.Ct. at 2252 (citing Wooley, 430 U.S. at 717 n.15, 97 S.Ct. at 1436).
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`Furthermore, the court recognized the following:
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`[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.
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`Id., 576 U.S. at 219, 135 S.Ct. at 2253 (citations omitted).
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`
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`Thus, while license plate designs are government speech, it is possible that
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`government speech can implicate private speech interests. Returning to Wooley, the
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`issue was whether the government’s message is “readily associated” with the private
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`person compelled to propound it. Wooley, 430 U.S. at 717 n.15, 97 S.Ct. at 1436.
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`Even more so than a license plate on a car, an identification card is personalized to
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`such an extent that it is readily associated with the bearer.4
`
`
`
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`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 prominently as a billboard or a license
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`We find instructive a recent ruling by a federal district court in Alabama,
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`which determined that a branded-identification requirement unconstitutionally
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`compels speech. The ruling in Doe 1 v. Marshall, 367 F.Supp.3d 1310 (M.D. Ala.
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`Feb. 11, 2019), pertained to the Alabama Sex Offender Registration and Community
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`Notification Act (“ASORCNA” or “the Act”), which applied to adult offenders
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`convicted of any of 33 infractions designated as sex offenses under Alabama law.
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`There, a sex offender must abide by certain registration and notification
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`requirements and must carry a branded identification card. Those registrant-specific
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`identifications must bear the inscription “criminal sex offender” in bold, red letters,
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`which enable law enforcement to identify the licensee as a sex offender.
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`
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`In February 2019, the Alabama court granted summary judgment for the
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`plaintiffs on the as-applied compelled speech challenge, declaring that the branded
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`identification requirement under Alabama law was unconstitutional under the First
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`Amendment. It specifically found that the branded identification requirement
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`unnecessarily compels speech, and it was not the least restrictive means of advancing
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`a compelling state interest. Id. at 1324. The court, citing to Cressman v. Thompson,
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`798 F.3d 938, 949–51 (10th Cir. 2015), observed there was a four-part test to
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`determine whether the state has compelled speech. “There must be (1) speech; (2) to
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`which the plaintiff objects; (3) that is compelled; and[,] (4) that is readily associated
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`with the plaintiff.” Id. The court found all four elements were satisfied. Id.
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`First, comparing the words “criminal sex offender” to the “Live Free or Die”
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`license plate in Wooley, supra, the court found there was speech. Id. The court
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`further observed that while the branded identification cards involved government
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`speech, that designation did not immunize it from a compelled speech analysis.
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`While no one can force the state to print a specific design on a license plate, like in
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`plate, an identification card is not as pervasive yet unnoticed as currency either, and often must be
`displayed to handle every day, mundane duties.
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`Walker, supra, neither can the state force someone to display a certain message on
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`their license plate, like in Wooley. Id. at 1325.
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`Next, the Doe I court recognized that the plaintiffs strongly objected to the
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`message on their identification card, but they were compelled to display the message.
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`Carrying and displaying identification is a virtual necessity in contemporar