No Free Speech Right to Name Change
From In re Argue, decided June 2 by Minnesota District Court Judge Charles Webber:
Nautica Alaja Argue wants to change his name to Navier Argue, explaining that he wants his name "to accurately align with his gender identity as a transgender individual." But Argue is a convicted felon {convicted [in 2022] of numerous aggravated robberies and other robberies … that involved more than a dozen separate victims} and therefore can change his name only as allowed by Minn. Stat. § 259.13.
That statute provides that when a prosecuting authority objects to a felon's name-change application (as Ramsey County has done here), a court can grant the application only if the applicant either: (1) "proves by clear and convincing evidence that the request … will not compromise public safety" (among other things), or (2) establishes that failure to allow the name change "would infringe on a constitutional right of the [applicant]." … Argue has not carried his burden of proving by "clear and convincing evidence" that changing his name "will not compromise public safety," and failure to grant his name-change request would not infringe on a recognized constitutional right.
The details related to the application of the statute are in the opinion (for more on Argue's original crimes, see this newspaper article); but here's the rejection of Argue's constitutional claim:
Even if a person seeking a name change is not able to satisfy the requirements of § 259.13, subd. 3, a court must grant the request "if failure to allow it would infringe on a constitutional right of the person." Argue maintains that denying his petition would infringe on two constitutional rights: his right to free speech and his right to privacy….
The Minnesota Court of Appeals has twice rejected [in nonbinding decisions] the argument that denial of a name-change request violates a person's free-speech rights, noting both times that there is no authority supporting a free-speech right to change one's name. Indeed, the court of appeals concluded that such a claim had "no merit." Federal courts are in accord. See United States v. Diamond (E.D. Pa. 2022) (collecting cases)….
Argue acknowledges that the Supreme Court of Wisconsin recently held that a transgender person does not have a First Amendment right to a name change. Interest of C.G. (Wis. 2022). The court began by noting that "[f]ew courts have addressed this issue [and] [a]mong those that have, none have held that a prohibition on changing a person's legal name, standing alone, implicates the right to free speech." A concurring justice stated it even more bluntly, stating that the plaintiff there was asking the court to hold "for what would appear to be the first time in American history that a person's legal name contains expressive content subject to the First Amendment's free speech protections." The court then canvassed the cases on the subject, which generally coalesce around the rationale that "[i]f a person is free to use a different name in day-to-day affairs, statutory restrictions on changing a person's legal name have not been understood to restrict speech or expression." …
Argue also cites a law student's law-review article, Julia Shear Kushner, The Right to Control One's Name, 57 U.C.L.A. L. Rev. 313 (2009) …. [Note that I was the advisor on that article, and indeed recommended the subject to the author as being an interesting topic. -EV] The easy answer to that is that a law student's law-review article is far from powerful authority for recognizing a constitutional right. Indeed, law-review articles commonly advocate for a change in the law or development of new law, and therefore are generally not solid ground upon which a district judge should base his or her effort to apply existing law. As a federal court noted with respect to the very article that Argue cites, "[it] is not legal precedent at all. It is a wholly insufficient legal basis for the Court to agree with Plaintiff's viewpoint." Krebs v. Graveley (E.D. Wis. 2020), aff'd (7th Cir. 2021). And even if I were to accord the article persuasive value, I note that the author conceded that "denials of name-change petitions do not directly impose restrictions on the petitioners' speech," explaining:
None of the difficulties faced by denied [name-change] petitioners restricts something to which they are entitled based on their free speech rights. None of these difficulties in fact place limits on speech at all. The only actions limited are petitioners' ability to request, and in some cases require, others to speak in a certain way. Denied petitioners may continue to say and write that their names are whatever they prefer in arenas to which they are entitled to free speech. For example, a denied petitioner is always free to say, "My legal name is Mary, but I prefer to be called Jane." Although denied petitioners will be required to continue to use their official names on government documents, these are not traditional fora for speech. Thus, denying permission to use a chosen name on government documents does not directly restrict speech.
What the Wisconsin Supreme Court said in C.G. and the U.C.L.A. law student said in her law-review article are true in this case as well. Nothing about denial of Argue's request to change his name prohibits him from saying something or requires him to say something that he disagrees with. He is free to refer to himself as "Navier" going forward and to ask others to call him Navier. The only thing that Argue will not be able to do is use a different name when he is required to provide the name officially recognized on his birth certificate. But that is "not [a] traditional for[um] for speech" in the first place, so denying him that particular use of his preferred name "does not directly restrict speech." …
The court was likewise unmoved by Argue's right of privacy claim:
Argue asserts that courts have recognized two categories of personal privacy rights: (1) "'autonomy in making certain kinds of significant personal decisions"' and (2) "'ensuring confidentiality of personal matters."' The first category, Argue submits, relates to "'decisions arising in the personal sphere—matters relating to marriage, procreation, contraception, family relationships, child rearing, and the like." The second category, he contends, "includes 'the individual interest in avoiding the disclosure of personal matters."'
Argue asserts that Ramsey County's objection to his name-change request runs afoul of both categories of privacy interests, but he does not explain how it violates the first category—i.e., "'matters relating to marriage, procreation, contraception, family relationships, child rearing, and the like.'" … As for the second category of privacy interests, which Argue describes as a "constitutional right to informational privacy," Argue submits that his transgender status is a personal matter and that he wants to decide to whom he will disclose that status. "By not permitting Mr. Argue to change his name to match his gender identity," he asserts, "the prosecuting authority is forcing him to disclose his transgender status in violation of his constitutional right to informational privacy."
"[T]he law recognizes a right of informational privacy, which has two aspects: the right not to divulge private information to the government and the right to prevent the government from disclosing private information." Neither of these rights is compromised by denying Argue's request to change his name. The private information at issue is (according to Argue) "his transgender status." But denying his request to change his name does not require him to "divulge private information to the government" because the denial does not require him to divulge to the government that he is transgender. Indeed, denial of his motion will not require Argue to do or divulge anything. It will mean only that the information that the State already has regarding Argue will remain the same.
And denying his request to change his name does not infringe on Argue's "right to prevent the government from disclosing private information," because the government currently has no information regarding Argue's transgender status, except to the extent that Argue disclosed it to governmental agencies in this (public) proceeding, and Argue does not contend that the government has plans to disclose Argue's transgender status to others. Again, denying Argue's name-change request will simply maintain the status quo: it will not require Argue to do or divulge anything and it will not require the government to do or disclose anything….
[E]ven if I could alter the parameters of the informational-privacy right, I would decline to do so. The supreme court has noted that "a protectable right of informational privacy depends on a balancing of the competing interests of the individual in keeping his or her intimate affairs private and the government's interest in knowing what those affairs are when public concerns are involved."
That means that Argue's claim that the government must allow him to change his legal name to avoid the possibility that some people would learn his legal name and deduce from it that he is transgender must be balanced against the State's competing interests. And … "the public ha[s] a 'compelling interest in maintaining [a felon's] record of violence,"' and that that compelling interest "is implicated if [a felon] is permitted to change his legal name … because the name change will make it more difficult to access records of his criminal history." I conclude that the State's actual "compelling interest" in that regard outweighs Argue's right to avoid the possibility that someone would both learn of his legal name and deduce from it that Argue is transgender.
The risk to Argue of disclosure of private information about him is quite speculative. The risk to the State of compromise to its record of a felon's past violent acts is much less so. When the State's interest is weighty, well-recognized, and more likely to be infringed than a countervailing interest that is weighty but not well-recognized and less likely to be infringed, the State's interest must prevail….