Sheriff Violated First Amendment by Posting "No Trick-or-Treat" Signs on Sex Offenders' Front Yards

From McClendon v. Long, decided today by the Eleventh Circuit, in an opinion by Judge Frank Hull, joined by Chief Judge William Pryor and Britt Grant:

In October 2018, two deputies from the Butts County Sheriff's Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning "STOP" and "NO TRICK-OR-TREAT AT THIS ADDRESS." Before Halloween 2019, three registered sex offenders living in Butts County sued, seeking to enjoin the Sheriff from placing the signs again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff…. [W]e conclude that the Sheriff's warning signs are compelled government speech, and their placement violates a homeowner's 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….

The Sheriff's Office placed these warning signs in front of the listed homes of all registered sex offenders in Butts County, without considering whether the State had classified any of them as posing an increased risk of recidivism. The deputies collected the signs on November 1….

After the warning signs were placed, Sheriff Long posted a message on his official Facebook page, along with a picture of the sign. In his post, he explained that the signs had only been placed in front of the homes of registered sex offenders. His message also represented that Georgia law forbids registered sex offenders from participating in Halloween …. It is now undisputed, however, that Georgia law does not forbid registered sex offenders from participating in Halloween.

First Amendment protection "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard (1977). "The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind." The compelled speech doctrine applies to ideological speech and purely factual, non-commercial speech. Riley v. Nat'l Fed'n of the Blind (1988); Nat'l Inst. of Family and Life Advocs. v. Becerra (2018).

In Wooley, the Supreme Court held that it was unconstitutional for the State of New Hampshire to prosecute a citizen for covering the State motto, "Live Free or Die," on his license plate. Specifically, the Court held that a 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." The Court stated that the New Hampshire statute "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message or suffer a penalty."

This case is materially similar to Wooley…. [T]he Sheriff required the use of private property as a stationary billboard for his own ideological message, "for the express purpose that it be observed and read by the public." …

In concluding otherwise, the district court erred in two ways. First, it determined that a compelled government speech claim requires a finding that a reasonable third party would view the speech as "endorsed" by the plaintiff. Wooley contains no such requirement….

Second, the district court erred by determining that the plaintiffs' ability to place their own yard signs disagreeing with the warning signs could cure the original violation. This ignores that the harm here is the forced display of a government message on private property in violation of the "right to refrain from speaking at all," not the "forced appearance of endorsement" of that message. Indeed, yard signs at "one's own residence" are a "distinct and traditionally important medium of expression." Residents, then, should be able to decide whether to use that traditional medium for speech in the first instance. [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] …

When the government "compel[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]he Sheriff's interest in protecting children from sexual abuse is compelling. However, the yard signs are not narrowly tailored to achieve that goal.

In 2018, the Sheriff's deputies placed the signs in the yards of all 57 registered sex offenders in Butts County. Prior to placing the signs, the Sheriff did not consider whether any of the registrants were classified by Georgia as likely to recidivate. He even admitted that, since he took office in 2013, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor on Halloween or at any other time. The Sheriff has not provided any record evidence that the registrants in Butts County actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger. And the Sheriff bears the burden of proof on the issue of whether his signs are narrowly tailored.

Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence), the signs are not tailored narrowly enough. Sheriff Long testified that the sex-offender registry, which contains each registrant's name, address, and photograph, is available on the State of Georgia's website, on the Butts County website, at Butts County administrative buildings, and at the Butts County Superior Court Clerk's Office. The Sheriff has made the sex offender registry widely available through government sources, diminishing the need to require residents to disseminate the same information in yard signs on their 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."

I think this is quite correct, given Wooley v. Maynard. Congratulations to lawyer Mark Yurachek on the victory.

Comments

[Commenter_XY]

Is Sheriff Long an elected official? 🙂

[DaivdBehar]

Lawyers protecting criminals again.

[Sandy]

But they aren't criminals. They are people with previous criminal convictions for which they served their sentences. They are leading productive, law-abiding lives. Isn't rehabilitation the bottom-line goal of the criminal justice system? Why then do we continue to want to punish and demonize those who have achieved that goal?

[DaivdBehar]

I like the name of the cointy. I like the name of the Sheriff.

[Brett Bellmore]

I'm not really seeing how a notice that says "A Community Safety Message From Butts County Sheriff Gary Long" can reasonably be construed as the homeowner's speech. It says right on it whose speech it is.

I'm not saying there would be no other grounds for prohibiting this; Barring a statutory basis for placing the signs, it's clearly a violation of the home owner's property rights to post them on their property. Relatively minor, but a taking.

But, First amendment? No. I hate how everybody shoehorns everything into the First amendment, just because it's the only part of the Bill of Rights the courts are inclined to take seriously.

[David Nieporent]

I'm not really seeing how a notice that says "A Community Safety Message From Butts County Sheriff Gary Long" can reasonably be construed as the homeowner's speech. It says right on it whose speech it is.

Simple: the test isn't whether it can be construed as the homeowner's speech. That's a red herring. The government can't compel you to disseminate other people's speech using your property.

[David Nieporent]

I mean, the court explains this all clearly:

In concluding otherwise, the district court erred in two ways. First, it determined that a compelled government speech claim requires a finding that a reasonable third party would view the speech as “endorsed” by the plaintiff. Wooley contains no such requirement. Wooley held New Hampshire’s law unconstitutional because the law required the plaintiff to “participate in the dissemination of an ideological message” against his will, and it used the plaintiff’s private property (his vehicle) to do so. Id. at 713, 97 S. Ct. at 1434. That the message is intended to be seen by the general public is of course necessary to the idea that the State is using the plaintiff’s property to disseminate the message. But the primary harm in Wooley is just that: the required use of the plaintiff’s property as a “billboard” for government speech. There is no explicit or implicit requirement that those reading the “billboard” believe the plaintiff has endorsed a government message that he is being forced to host. Id.; cf. Hunt, 891 F.2d at 1566 (holding that Alabama did not compel its citizens’ speech by flying the confederate flag at the capitol building because the State did “not compel its citizens to carry or post the flag themselves” or “to support whatever cause it may represent”).

Second, the district court erred by determining that the plaintiffs’ ability to place their own yard signs disagreeing with the warning signs could cure the original violation. This ignores that the harm here is the forced display of a government message on private property in violation of the “right to refrain from speaking at all,” see Wooley, 430 U.S. at 714, 97 S. Ct. at 1535, not the “forced appearance of endorsement” of that message. Indeed, yard signs at “one’s own residence” are a “distinct and traditionally important medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 56, 57 n. 16, 57 114 S. Ct. 2038, 2046 & n. 16 (1994). Residents, then, should be able to decide whether to use that traditional medium for speech in the first instance.

No limiting principle exists under the district court’s post-a second-sign version of the compelled speech doctrine. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636, 63 S. Ct. 1178, 1184 (1943) (“If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority. . . .”). If the only constitutional requirement for the government to compel citizens to host its speech on their private property is that it also permits them to post a second sign disagreeing with the first, the Sheriff could place any sign identifying himself as the speaker in any county resident’s yard. This result is inconsistent with Wooley. The Sheriff’s yard signs are compelled government speech, and their placement in a homeowner’s yard is unconstitutional unless the signs are a narrowly tailored means of serving a compelling government interest.

[Brett Bellmore]

" The government can't compel you to disseminate other people's speech using your property."

That's my point: The government can't compel you do do ANYTHING using your property. It was a taking, they were using private property for government purposes.

That they were using it to disseminate speech was totally beside the point.

[Larvell Blanks]

It might be beside your point, but your point is beside the point, since the court was addressing a First Amendment claim and not a Takings Clause claim.

[Brett Bellmore]

And that's also my point: Too many other rights get shoehorned into First amendment cases, because it's the only amendment in the Bill of Rights the courts take very seriously.

He could have challenged it as a taking, had a perfectly valid and strong case, and the courts largely wouldn't have cared.

[Larvell Blanks]

I doubt he would have won at all if he had challenged it as a taking. There are all sorts of infringements of property rights that don't rise to the level of a taking, and this one was de minimis, since it didn't interfere with his use of the property and was very short term. The real harm was not the placement of an object on the property for a few days, but what the object had written on it -- something he didn't want to say -- and that is a quintessential First Amendment issue.

[Brett Bellmore]

"There are all sorts of infringements of property rights that don't rise to the level of a taking"

THAT'S WHAT I'M SAYING! The courts by and large don't take property rights seriously, they're not going to sanction a cop for a 'minor' violation of somebody's property rights.

But if you can construe that minor property rights violation to be a minor case of compelled speech, and never mind that you never said anything, and it was clear you didn't, suddenly the courts pay attention.

Because they value speech rights, and shit on property rights.

[Larvell Blanks]

Apparently they did assert a takings claim, as well as a trespass claim, but did not raise those issues on appeal.

[David Nieporent]

For those of you who don't go to original sources, they did challenge it as a taking. Also as a trespass.

[SMP0328]

The Takings Clause would mean the Sheriff could put the signs in the respective private properties as long as he was willing to pay for doing so. The Free Speech Clause prohibits such unconsented-to signage regardless of just compensation. The complaint of the sex offenders was regarding the signage, not the lack of being paid for the posting of the signs.

[Martinned]

That's what I was thinking too, but I think David Nieporent has it right.

P.S. Is no one going to comment on the fact that this happened in Butts County?

[LawTalkingGuy]

This is close to the error the district court made, by thinking of it in terms of whether the people would think plaintiff would be associated with the message. He's still being forced to carry the message whether or not people would know that its not his message.

Think of it this way: imagine instead of a yard sign the sheriff's department said you had to put this message on a social media page of yours. People could still tell that it was the sheriff's message not yours and you could put a comment under the post saying you disagreed....but you'd still be being compelled to spread their message.

[Rev. Arthur L. Kirkland]

" But, First amendment? No. I hate how everybody shoehorns everything into the First amendment, just because it's the only part of the Bill of Rights the courts are inclined to take seriously. . . . But, First amendment? No. I hate how everybody shoehorns everything into the First amendment, just because it's the only part of the Bill of Rights the courts are inclined to take seriously. "

When I want a disaffected, antisocial engineer's gullible, right-wing analysis of a legal issue, I look for "Birther" Brett Bellmore's opinion.

[Bored Lawyer]

And when I am looking for the perspective of a person with a massive inferiority complex, who believes that personal attacks are a substitute for substantive argument, I turn to you Rev.

[Eugene Volokh]

Brett Bellmore: I appreciate your argument, which is much like what Justice Rehnquist argued in dissent in Wooley v. Maynard (everyone would understand that "Live Free or Die" on a license plate is New Hampshire's speech, not the driver's). But that debate was resolved 40 years ago, so the "it's the government's speech, not the sex offender's" argument can't carry the day under Wooley.

[Brett Bellmore]

Yes, I'm rather clear on the fact that the Supreme court makes mistakes from time to time. 😉

[LawTalkingGuy]

I don't really understand how the District Court got it correct by granting the preliminary injunction but then bought the idea that competing speech cured the issue when denying the permanent injunction. Seems weird. Also from a common sense perspective...what is this sign that the (plaintiffs are supposed to supply for themselves) supposed to say? "This sign is actually incorrect as a matter of GA law, please disregard!" Yes...that totally solves the problem of the state using your property to advertise that no one should come to the house because a sex offender lives there.

[David Nieporent]

Seems clearly right. I do like that the court decisively rejects the "perceived endorsement" interpretation of compelled speech cases. As I pointed out in discussing the social media issues months ago, there is no possible way to interpret Wooley in that fashion. No rational person could think a message printed on a license plate by the government and affixed to every car in the state as a condition of using it on state roads represented the driver's viewpoint. But it didn't matter.

(The district court, absurdly, repeatedly cited the dissent in Wooley for that notion.)

[AmosArch]

You might as well paint a 'HEY I'M A PERVERT PLEASE ATTACK ME' red bullseye on yourself with those no candy and no trick or treat signs in general. But this one is blares it out in gigantic spotlights even more obnoxiously.

I always found it interesting how not even murderers seem to warrant the unique form of state sanctioned ongoing harassment sex offenders go through.

[David Nieporent]

Yes. One can disdain sex offenders without endorsing the last 25 years of jurisprudence, the Megan's Law era. They're all based on the false idea that sex offenders have a massively higher recidivism rate than other criminals, which was junk science at the time and hasn't gotten better since.

[LawTalkingGuy]

My state has solved this inequity by creating violent offender registries.

[Brett Bellmore]

Part of that is that you can get put on the "sex offender" list just for taking a wiz in public, when you think nobody is looking. It was a real fight convincing my five year old that, no, bushes were not "expedient peeing stations", and especially not the ones that were too short to hide behind.

[Noscitur a sociis]

Part of that is that you can get put on the "sex offender" list just for taking a wiz in public, when you think nobody is looking.

In which jurisdiction is that?

[Sandy]

It is in the statutes of twelve or thirteen states. It is very seldom enforced, but it is in the law that it is a sexual, registerable crime. Some states include it under indecent exposure.

[ReaderY]

This country has widows whose husbands of many years got murdered because a dalliance begun a few months or days before she became of age got found out, went to the courts, led to a web posting, and then some vigilante years later decided the guy should be killed.

https://www.newyorker.com/magazine/2016/03/14/when-kids-are-accused-of-sex-crimes/amp

[Noscitur a sociis]

Did I miss the reference to the people you're describing in that article? Or are you thinking of different cases?

[jimc5499]

Sheriff must be an elected position there. Is it any coincidence that Halloween when he puts the signs up is the week before Election Day? Are the signs just a "Vote for me. I protect your children from sexual predators." campaign sign at the same time the media is over hyping the danger to children?

[Noscitur a sociis]

Is it any coincidence that Halloween when he puts the signs up is the week before Election Day?

It doesn't look like the sheriff was up for election in 2018, and it appears he won by about 50 points in both 2016 and 2020, so I would say yes—it is a coincidence.

[Queen Amalthea]

Sheriff Long's efforts in Butts County to combat sex offenders? Fire the writers.

[santamonica811]

If his first name is not Richard, he should change it so that it is in the future.

[Goju]

The sheriff can't put the signs on the sex offender's property. Two questions; First, what if the sex offender is renting? It is technically not his property, so can the sheriff post signs on this property?
Second, Can the sheriff post the signs in front of these properties, but on city, village, town, etc land? Like a sign in the street?

[LawTalkingGuy]

If the landowner objects, then certainly not. Still compelled speech. If the landowner voluntarily puts up the sign...I don't think its an issue of government compelled speech. Maybe there could be a landlord-tenant law issue depending on the state? I don't really know. I wouldn't be surprised if this has been an issue during elections. Renter doesn't want candidate X signs in the yard but the landlord does, or landlord doesn't want renter to put up candidate Y signs. But I am not sure if there are legal rules on that.

"Can the sheriff post the signs in front of these properties, but on city, village, town, etc land?"

Yes. They almost certainly could.

[Bored Lawyer]

"Can the sheriff post the signs in front of these properties, but on city, village, town, etc land? Like a sign in the street?"

I was wondering about that. Isn't there public property in front of each of their houses? We have that in my town -- a strip of land the town owns, with grass and an occasional tree.

[Brett Bellmore]

"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."

[Bored Lawyer]

That sounds like his yard. As to which the government does sometimes have an easement for certain purposes.

I mean land owned by the municipality. Perhaps things are different in Georgia than in New Jersey, where I reside.

[ReaderY]

A renter gets a right of possession, which includes the right to exclude others, as consideration for the rent paid.

You can’t simply barge into someone’s apartment because you think they, as mere tenants, don’t have a right to control who or what goes onto the property. Renting makes it theirs for these purposes, subject to exceptions in the lease and at law.

Government officials post signs in the street all the time. Traffic lights too.

[LawTalkingGuy]

Yes this makes sense. It's been a while since I've had to think about landlord-tenant stuff, but this sounds right.

[apedad]

I wonder if the sheriff broke GA law.

These registries usually have some sort of restriction on how the information can be used.

In VA, the registry site sez, "Unlawful use of the information for purposes of intimidating or harassing another is prohibited and willful violation shall be punishable as a Class 1 misdemeanor."

Since his use was found to unlawful, a reasonable case could be made that instead of protecting children, he was harassing the people.

Let's put a deputy on the stand and hear him testify that, "Yes, the sheriff did mention he was doing this to punish these ^$#%^& pedos."

[Noscitur a sociis]

Since his use was found to unlawful, a reasonable case could be made that instead of protecting children, he was harassing the people.

I don't see how that follows.

[Voize of Reazon]

The reasoning is clear that the government putting signs on private property is compelled speech, but the court seems to assume rather than find that the sign in question, posted close to a public road, was on private property.
It does acknowledge there are two possibilities: The home owner may own the land and the government holds an easement for the road, or the government owns the right-of-way outright. The court observes that in the latter case the Sheriff would still be prohibited by Georgia law from posting signs there, and appears to conclude that this makes the question of ownership moot. I don't see it.
Maybe in the second case the Sheriff would have acted unlawfully, but it isn't clear the homeowner would have any cause of action, never mind a valid First Amendment claim.

[ReaderY]

The court found that the sign, posted on the front yard, was on the owner’s private property, and not on public land or a public right of way. It specifically found there was no easement permitting the sherriff to enter or post something on the spot. This wasn’t simply assumed.

[ReaderY]

In particular, the court found that the sherriff had the burden of proving the existence of an easement, and the sherriff didn’t offer evidence to meet this burden. This is a finding of fact that the sherriff didn’t have an easement, not a mere assumption. Since the boundaries of the property are recorded in the county register, relying on the deed as prima facia evidence of ownership by the homeowner, and requiring the person claiming an easement to prove it, is a completely reasonable approach to resolving disputes over rights to land.

[Brett Bellmore]

This is one of the points where legal language and normal English part ways, I guess. Because a "finding" based on failure to present contrary evidence absolutely IS a "mere assumption", and nothing else. It might be an assumption that has the legal effect of actual proof, but it's nothing but an assumption.

[David Nieporent]

It sounds like the sheriff litigated it as though it were a criminal case, in which courts just assume that whatever law enforcement says is true without bothering to question it:

Before placing the signs in 2018, the deputies did not conduct research to assure themselves the signs would be placed in rights-of-way. In 2019, for the preliminary injunction hearing, the Sheriff introduced some poorly scanned copies of subdivision plats that do not include any keys, legends, or labels; the plat maps are not self-explanatory. He also introduced aerial Google Maps photos of roads with lines drawn across them. But those maps do not indicate who owns the underlying fee where the lines are drawn, or that the lines represent right-of-way easements—much less who possesses any easements or for what purpose.

[Voize of Reazon]

I agree the court found the Sheriff's evidence of an easement unpersuasive, even eye-rollingly so.
I don't see anywhere though where the fact of ownership is established, and what evidence it is based on. The county register you refer to below isn't mentioned anywhere in the opinion. Can you give me a pointer, Reader?

[Bob from Ohio]

"owns a right-of-way in fee"

Sigh. A right-of-way is not a fee interest.

[John F. Carr]

In my experience "right of way" is often used regardless of whether the road and its environs are owned or subject to an easement.

[santamonica811]

If one of the offenders had been my client and the sheriff had done this, in their front yard; I would not have suggested removing the sign. But I don't think it would have broken any law if Harry Homeowner had put up his own sign (the same size as the sheriff's sign, or a bit larger) and placed it, say, 8 inches in front of the the original sign...thereby completely covering up that first one.

[John F. Carr]

A bit larger than the government sign and saying "free candy!"

[oncefallendotcom]

But the sheriff had told the Registered Person was not allowed to place a competing sign or obstruct the sign.

[oncefallendotcom]

Sheriff Schlong needs to be voted out in the next election.

[Vicki Henry]

We as compassionate human beings should stop to think about the children or teens living in the houses where the sheriff maliciously placed a sign in their front yards. The embarrassment and shame they felt and I'm sure their peers ridiculed them concerning a person they love and admire who made a mistake, paid their debt to society and just want to live in 'peace' with their family without continuous punitive measures. When does it end? When does redemption begin in our 'othering' society? Ever? Never? There are over 917,000 men, women, teens and children (young as 8 and 10) in some states required to register. Women Against Registry