The Volokh Conspiracy
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Requiring Registered Sex Offenders to Post Signs on Halloween Saying "No Candy or Treats at This Residence"
unconstitutionally compels speech, says the Eighth Circuit federal court of appeals.
Sanderson v. Hanaway, decided today by Eighth Circuit Judge Jane Kelly, joined by Judges James Loken and Ralph Erickson, struck down part of a Missouri law that provides,
Any person required to register as a sexual offender … shall be required on October thirty-first of each year to:
- Avoid all Halloween-related contact with children;
- Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to employment or medical emergencies;
- Post a sign at his or her residence stating, "No candy or treats at this residence";
- Leave all outside residential lighting off during the evening hours after 5 p.m.
From the court's opinion:
The First Amendment's protection "includes both the right to speak freely and the right to refrain from speaking at all." … The sign mandate … explicitly requires registrants to post a sign bearing a specific message…. [T]he sign mandate compels speech and, thus, is unconstitutional unless it can survive strict scrutiny….
The sign mandate will survive strict scrutiny only if it "furthers a compelling interest and is narrowly tailored to achieve that interest." The district court found that "Defendants have established a compelling interest in restricting certain conduct of sexual offenders on Halloween that satisfies the strict scrutiny standard." Neither party challenges that determination on appeal, and understandably so. We therefore move directly to the question of whether the statutory provision is narrowly tailored. In other words, is the sign mandate the least restrictive means of achieving the government's compelling interest
At trial, the State's witnesses offered several justifications for the sign mandate. Law enforcement officers testified that the signs were beneficial for enforcement purposes because the signs (1) allow them to "be able to ensure that there is compliancy," (2) make enforcement of the Halloween statute more efficient, and (3) provide an extra layer of protection for children.
The evidence presented, however, failed to show how the sign mandate achieved these goals. The statute does not set any requirements for the size or the location of the mandated signs. According to one law enforcement officer, a registrant could put "a little itty-bitty [ ] Post-it [note]" on the door and still be in compliance, so long as the note had "the correct verbiage." Another law enforcement witness confirmed that a compliant sign "could be as small as a postage stamp." Both officers further testified that, under the statute, a registrant would still be in compliance even if the sign was on the back door or inside the house. Even if a sign could result in greater efficiency for law enforcement and heightened protection for children, a sign that is not visible to law enforcement or trick-or-treating children fails to serve either purpose.
The efficiency rationale was also premised on the idea that, with the signs, officers do not have to exit their vehicles to ensure compliance with the Halloween statute. But one officer testified that even if he does not see a sign from the driveway, "that doesn't necessarily mean they are in violation of [the sign mandate]." And another agreed that officers "can drive by and see if the lights are on the house without getting out of the car…. [T]he fact that a sign isn't posted isn't going to make it more necessary for an officer to get out of their car[.]" Rather, "[t]he sign simply allows [officers] to have that extra provision that [they] are checking the right home." Indeed, the Chief of Police testified that his officers still enforced the remaining provisions of the Halloween statute when the preliminary injunction was in place, and there was no evidence that the statute was more difficult to enforce without the signs than with them.
Even when the signs are visible and legible from the driveway or the porch, there was no convincing evidence presented that they add anything to advance the goal of protecting children. One officer, based on her personal, rather than professional, experience trick-or-treating, said that having the exterior lights off on Halloween "means absolutely nothing" and that children will still approach the house. A second officer testified that the sign mandate was necessary because, unlike leaving lights off, the sign was "not ambiguous."
Yet this officer did not demonstrate how any such ambiguity would put children at risk. Rather, she wanted parents "to have a clear understanding that there is a potential danger at that location." Given the publicly accessible sex offender database, coupled with the remaining provisions of the Halloween statute, this testimony likewise does not establish a specific need for the sign mandate.
In any event, the State's sole expert, who testified to the compelling interest by demonstrating that Halloween presented unique risks for grooming that could lead to future abuse, could not provide any evidence for the claim that signs provide any additional protection beyond the other restrictions imposed on registrants in the Halloween statute. There was no evidence to support the idea that children would be at risk if there was no sign, so long as the registrant complied with the remaining provisions of the statute (i.e., remaining inside the residence, not giving candy to or otherwise engaging with children, and leaving lights off). In other words, nothing in the record indicates that a child knocking on a door that no one opens presents a risk to that child.
We agree with the State that narrow tailoring does not require "perfect" tailoring. Here, however, there is insufficient evidence to support the State's assertion that the sign mandate is the least restrictive means of achieving its goals.
The record does not support the claim that, despite the remaining provisions of the Halloween statute, the sign mandate is necessary to further the government's compelling interest in protecting children on Halloween. Accordingly, the sign mandate burdens more speech than necessary and fails strict scrutiny. See McClendon v. Long (11th Cir. 2022) (concluding that when a local Sheriff's office made signs carrying the message "NO TRICK-OR-TREAT AT THIS ADDRESS" and placed them in registrants' yards, the signs were compelled speech and they were not narrowly tailored to the compelling interest of protecting children from sexual abuse)….
