Free Speech

Sex Offender Tries to Change Name to "Better Off Dead"

No, says the trial court, and the Minnesota Court of Appeals agrees.

|The Volokh Conspiracy |

From In re Larson, decided last week by the Minnesota Court of Appeals:

Appellant Hollis John Larson has been indeterminately civilly committed to the Minnesota Sex Offender Program as a sexually dangerous person since 2008. He professes a religious belief involving Hinduism, Taoism, Buddhism, and Agnosticism. He is seeking to change his name to "Better Off Dead" in accordance with that religious belief and to express his freedom of speech….

Minn. Stat. Section 259.13 outlines the process by which a convicted felon can change his name…. Appellant had the burden to prove by clear and convincing evidence that the name-change request "is not based upon an intent to defraud or mislead, is made in good faith, will not cause injury to a person, and will not compromise public safety."

Appellant testified, but cannot establish, that he did not intend to defraud or mislead and stated in his motion for a name change that "virtually every/any document created by his current captors with the name 'Better Off Dead' will also state 'fka Hollis John Larson.'" Because his new and old names would be inextricably linked, appellant contends that changing his name would not compromise the public's ability to maintain or access his records. In its objection, the county argued that granting appellant's name change would compromise public safety because it would interfere with the state's ability to maintain his records and retain identification information for use in future investigations or prosecutions, and it would prevent the public from having immediate access to his criminal records.

The district court found that "[c]hanging one's name to a common expression such as 'Better Off Dead' has every potential to be misleading, [and] confusing," triggering a circumstance prohibited by the statute. Moreover, the district court upheld the prosecution's objection, which focused exclusively on public safety. We can infer from the district court's order that it agreed that granting appellant's name change would burden public safety, and it did not find appellant credible. We defer to the district court's determinations of credibility. Because "Better Off Dead" is an idiom and contains no pronouns [I assume the court meant "no proper names"-EV], it is an inherently misleading name.

Moreover, we are not convinced that appellant will identify himself as both "Better Off Dead" and his current name going forward. Appellant failed to meet his burden to show by clear and convincing evidence that his name-change request is not based on an impermissible factor. We conclude that the district court did not abuse its discretion by denying the name-change request….

We review the denial of a name-change application for an abuse of discretion, but we review the distinct question of whether denying a name-change application infringes on a constitutional right de novo. See State v. Pedersen (Minn. App. 2004) (stating that we review de novo whether application of a statute is unconstitutional as applied)….

The Minnesota Supreme Court employs a heightened "compelling state interest balancing test" when determining whether a challenged law infringes on or interferes with religious practices. This test has four prongs: (1) whether the objector's beliefs are sincerely held; (2) whether the state regulation burdens the exercise of religious beliefs; (3) whether the state interest in the regulation is overriding or compelling; and (4) whether the state regulation uses the least restrictive means…. To determine the first, second, and fourth factors, the district court must assess the sincerity and implications of appellant's religious beliefs. To determine the third factor, the district court must make a legal determination based on the statute and caselaw. We review mixed questions of fact and law for erroneous applications of law, but give discretion to the district court's factual findings and ultimate conclusion and review those conclusions under an abuse-of-discretion standard.

Regarding the first factor, appellant described his religion as including the belief that the only way for him to "achieve reconciliation with the divine" is to escape the cycle of birth, life, death, and rebirth by being and remaining dead. Hence, the name "Better Off Dead." After hearing appellant's testimony, the district court determined that "[p]etitioner failed to show that prohibiting him from changing his legal name to 'Better Off Dead' infringes on a constitutional right." The court elaborated that "[t]he expression 'Better Off Dead' does not have a known connection to any particular religious faith or belief." The district court's finding was sufficiently particularized because it implies that the [four] factors weighed against appellant. {While we conclude that the district court presented sufficient findings to support its decision in this case, we encourage district courts to make detailed findings in their analysis of the [four-]factor test as opposed to relying solely on a form order.} We infer from the court's conclusion that it did not find appellant credible and as a result did not believe he sincerely held his belief. We defer to this credibility determination. State regulation cannot burden an insincere belief, so the second factor also is not met. As a result, we need not determine the third or fourth … factors.{ Even if we were to weigh these factors, we note that the supreme court has acknowledged the state's interest in public safety as a compelling government interest. Furthermore, the only available options for the state were to accept or deny the name-change petition, meaning that denying the petition was the least restrictive means to uphold public safety.}…

Appellant [also] described his desired name change "as an exercise of his fundamental right to free speech and freedom of expression." He testified that the name change is "a peaceful form of protest against [the government], all these entities that caused me this pain and suffering and leading to my … philosophy in life." Appellant elaborated that changing his name would be the best way for him to officially communicate his life philosophy to society.

The district court determined that "[appellant] failed to show that prohibiting him from changing his legal name to 'Better Off Dead' infringes on a constitutional right." Implicit in this conclusion is the belief that denying the name change did not burden appellant's freedom of speech. Appellant failed to provide specific authority regarding the free-speech right to change one's name under these circumstances, and there appears to be none. We conclude that the district court did not improperly reject appellant's freedom-of-speech argument and did not abuse its discretion by denying his name-change petition.

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  1. In a nation of 330MM people, you have to figure that there is one knucklehead that takes the cake. Looks like we found him in Better Off Dead. This guy sounds like a real prize.

    1. i’m pretty sure you can outdo anyone in America except Trump when it comes to stupidity. Trump has set the bar extremely high but I’m sure that is not stopping you from trying.

      1. Oh yea…well, non sequitur #1 and non sequitur #2 about liberals because abortion and gun control, that’s why.

  2. “In its objection, the county argued that granting appellant’s name change would compromise public safety because it would interfere with the state’s ability to maintain his records and retain identification information for use in future investigations or prosecutions, and it would prevent the public from having immediate access to his criminal records.”

    So much for the concept of paying your debt to society and starting over.

    1. That argument seemed particularly weak to me, too, though for different reasons.

      If the county’s argument is correct, then any name change would compromise public safety. Even changing your name following a marriage would “interfere with the state’s ability to maintain … records”. That conclusion is implausible and inconsistent with the wider practice.

      So they must be trying to say that changing your name to a common phrase would be what causes the damage. But that’s also implausible because the state’s databases use fielded data. And no matter how common “Better Off Dead” is as a phrase, it’s demonstrably uncommon within name fields.

    2. So much for the concept of paying your debt to society and starting over.

      The idea of “debt to society” is bullshit. It falsely implies that there is such a thing as “society” that can be owed something to, and it falsely implies that there is a well-defined way of making up for past transgressions against others. Neither is true.

  3. Strikes me as a first amendment violation: The real reason for blocking the name change is they don’t like what he’s saying with it.

    1. That doesn’t seem right to me. Are you suggesting that the state would have been fine with him changing his name to “Better Off Alive”, for instance?

      1. Their expressed objection would appear to prohibit any name change whatsoever. Is that the policy? If it were, I’d think they’d have just come out and said so, right?

        So the real objection to the name change would appear to be that he’s using the new name to express an opinion. First amendment.

        1. Exactly. It might even be constitutional to say, for instance, only single word first names, or even to curate a list of the 5 million most common first names in the entire world or something and say the changes must be picked from that list.

          But what was done here was clearly viewpoint-based. And even if we consider names a nonpublic forum, viewpoint-based discrimination is a no-no.

  4. Didn’t Prince legally change his name to an unpronounceable symbol that is not producible on any font? This guy should be allowed the same freedom, all things considered.

    1. As best I can google he didn’t legally change it. He just started using it. Like any other stage name.

      He did copyright it.

      1. As best I can search, he did, as he presumed that legally changing it was a way to get out of a contract with Warner Brothers, singed under his birth name of Prince, and he had a lawyer do it for him. Warner Brothers was then obliged to send correspondence with the symbol as the address (before everyone hit on the “artist formerly known as prince”) and the only way they could do it was on floppy disks.

        He did copyright it too.

        1. You meant ‘signed’ not “singed.” An ordinary typo. But, given the fact that a world-famous singer was the party involved, you have the honor of being the first time (in my limited experience) where the typo also worked perfectly . 🙂

  5. perhaps it was the government’s fear of the fallout over the abbreviations “B. Dead” or maybe “B. O. Dead”

  6. Sounds like the state needs to improve it’s databases if they can’t associate one person with multiple names.

    Something like half the population can expect to go through at least one name change in life.

  7. We live in a nation where celebrities can name their spawn North West or Apple or Rumor. A guy can change his name to Prince and then to a nonsensical symbol. Malcolm X was called that as a form of protest.

    There’s no legitimate reason to deny the name change in peaceful protest of a barbaric law more befitting of North Korea than of the “Land of the Free.”

    1. Prince was his given name.

  8. Finally, a religion-based privilege claim clingers dislike.

    1. I am confident that I’m at least as stridently antitheistic as you are, but even I have to concede that there’s some justification for treating genuine claims different from fraudulent ones.

      1. What inclines the conclusion this claimant’s religion-based claim is less deserving (less genuine, more fraudulent) than are other superstition-based claims?

        1. In this case, the trial court expressly found that the applicant was lying about the religious nature of his claim. In the other cases that I assume you’re incensed about, the court either found that the claimants were sincere, or (more commonly) their sincerity was not challenged by the adverse party.

          1. I sense the trial court’s conclusion derived as much from (1) the perceived unattractiveness of the claimant and (2) the nature of the religion underlying the claim as from any sound inquiry regarding whether this superstition-based claim was worth as much as any other superstition-based claim.

            I conclude most religious claimants do not genuinely believe their supernatural claims to be true, using their conduct and statements as evidence (as well as the daft nature of most of what they claim to believe). From televangelists’ magic water to the parting of a sea, from magic underwear to strange hats, from a giant ark, an apple and a snake to dozens of virgins and an aversion to certain foods, from thetans and demons to faith healers and exorcists, none of it withstands contemplation by adults.

      2. I want to point out that atheists and antitheists are quite different, and I’m not sure you used the right one.

        A theist knows there’s at least one god.

        An agnostic doesn’t know if there are any gods.

        An atheist knows there aren’t any gods.

        But an anti-theist knows gods exist, and wants to kill them.

        1. I’ve never heard that usage, and don’t see it reflected anywhere on the first couple pages of google results. (The OED gives “One opposed to belief in the existence of a God.”)

          I meant that (like, I imagine, the Rev.), I don’t believe in any gods, I think their non-existence is a good thing, and the existence of such a belief makes the world worse.

          1. I rely on reason, which led me to the Congregation Of Exalted Reason.

    2. Clingers really live rent free in your head:)

      1. Open wider, sam123.

  9. He could always try… Slaphappy Fishsuit Mokiligon…

    1. Or: Galactic President Superstar McAwesomeville (hat tip: HIMYM)

  10. If you ended up on a sex offender registry what would you change your name to?

    Those registries amount to a life sentence. At least if you want more out of life than living in a tent by the city dump eating nothing but cold canned beans.

    1. The name of either the judge who so sentenced you, the prosecutor asking for that sentence, or the legislator who wrote the law all seem quite equitable to me.

      If it’s not a punishment after all then there’s no problem with being confused with a person on the list, right?

  11. What category of unprotected speech do prohbitions on certain name-changes fall innto?

    1. The FYTW category.

      Also known as the “you can’t afford to bring this in federal court and litigate it all the way so we can do whatever we want to you” exception.

      Which is why s1983 should be applied exactly as written – if a judge denies something protected then they’re on the hook for damages. A state could choose to indemnify their judges (and almost assuredly will), but there’s no good reason that minor tyrants should be immune to the damages they cause. And this should hold true no matter how clear the right was – the public should always bear the cost of their servants actions rather than a single individual, that’s the entire point of the Takings clause. It should be strict liability all around, with state indemnity, and the voters providing whatever oversight they think is appropriate.

  12. It’s clear that he was just trying to demonstrate what a big John Cusack fan he is.

  13. Appellant testified, but cannot establish, that he did not intend to defraud or mislead

    How exactly is one supposed to establish this beyond mere testimony?

    In its objection, the county argued that granting appellant’s name change would compromise public safety because it would interfere with the state’s ability to maintain his records and retain identification information for use in future investigations or prosecutions, and it would prevent the public from having immediate access to his criminal records.

    Under this rationale the state could block any name change.

    The reasoning by the court is quite poor. I’m not sure this makes a First Amendment religious claim, but it’s certainly a free speech claim.

  14. I’m reminded of the brilliant politician in Texas who changed his name to “none of the above” just before ballots were printed.

    What other amusing name changes can readers of this blog suggest?

  15. Well, he ain’t wrong. In some ways you’re better off committing murder than getting caught looking at a pic of a 17 year old uncovered boob. At least murderers aren’t targeted for a gruesome death in prison and don’t have to register for the rest of their life anywhere near as often.

    1. Mr. Off Dead wasn’t “caught looking at a pic of a 17 year old uncovered boob”:

      Larson was convicted in 1992 for sexually assaulting his thirteen-year-old niece, SLL, when he was twenty-four years old; Larson’s sexual abuse of SLL occurred over an extended period of time; the abuse included sexual intercourse, fondling, digital penetration, physical restraint, cruelty, coercion used to gain compliance, threats used to maintain secrecy, and alcohol provided to the victim; Larson was convicted in 1993, of sexually assaulting his fifteen-year-old niece, MLM, when he was twenty-five years old; the abuse involved two separate incidents, which included fondling, digital penetration, sexual intercourse, and implied threats that, if MLM resisted, Larson would assault her younger sisters; when Larson was twenty-four years old, he was charged, but not convicted, with sexually assaulting a fifteen-year-old girl, DR, in South Dakota in December 1988; Larson denies culpability for his convictions; he refuses sex-offender treatment; he has an extensive nonsexual criminal history; he suffers from mental disorders; and, based on several factors, including inadequate ability to control his sexual impulses, he is highly likely to reoffend.

      At the time of the commitment proceedings, Larson had also been charged, in January 2008, with making terroristic threats in letters from prison to his sister. The criminal complaint alleged that the letters, when read in the context of their past relationship, suggested that if Larson’s sister did not send him money he would kill her. Larson was convicted of the terroristic-threats count on May 12, 2008.

      In re Civil Commitment of Larson (Minn. App. 2009) (unpublished).

      1. I’d guess he has also filed numerous “pro se” lawsuits against everyone involved in his imprisonment. This is just the latest chapter. His multiple religious beliefs are also possibly a way to get out of various prison rules.

  16. “Better Off Dead” is the name of one of the best episodes of the classic 1980s TV series from the Sci-Fi channel “Friday the Thirteenth: the Series”. It has nothing to do with the movie franchise.

    https://www.youtube.com/watch?v=GYyIw8GaxZE

  17. I want my two dollars.

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