US v Arnold

Notice what the court DID NOT address. Why?

1-24-2014 Mississippi:

US v Arnold

Luther Arnold appeals pro se the denial of his 28 U.S.C. § 2255 motion, claiming that the registration requirements of the Sex Offender Registration and Notification Act ("SORNA") compel his speech in violation of the First Amendment. We affirm.

n 1994, Arnold pleaded guilty of rape, incest, and homosexual acts in Madison County, Tennessee. As a result of the convictions, he was required to register as a sex offender pursuant to SORNA.1 In 2011, he moved from Marshall County, Mississippi, to Tennessee but did not (a) notify Marshall County of his move, (b) update his registration with Mississippi, or (c) register as a sex offender in Tennessee. Shortly thereafter, he was charged, and pleaded guilty of, failure to register as a sex offender in violation of 18 U.S.C. § 2250(a).2

Arnold did not file a direct appeal but collaterally challenged his sentence using § 2255.3 We granted a certificate of appealability, allowing Arnold to argue on appeal that "SORNA is unconstitutional because the registration requirements violate his right to free speech . . . ."4

We have not addressed whether SORNA's registration requirements violate the First Amendment's prohibition of compelled speech.5 [(5)Cf. Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 765 (5th Cir. 2008) ("The First Amendment protects compelled speech as well as compelled silence."). We therefore begin by discussing West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) and Wooley v. Maynard, 430 U.S. 705 (1977), the relevant Supreme Court precedent on compelled speech. We then turn to related circuit-court precedent.

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Arnold has not urged that SORNA either requires him (a) to affirm a religious, political, or ideological belief he disagrees with or (b) to be a moving billboard for a governmental ideological message. In fact, it appears that Congress enacted SORNA as a means to protect the public from sex offenders by providing a uniform mechanism to identify those convicted of certain crimes.10 Barnette and Maynard do not therefore require us to conclude that the government has unlawfully compelled Arnold's speech.

Our limited sister-court precedent further supports this view. The logic of Sindel extends to the present case: When the government, to protect the public, requires sex offenders to register their residence, it conducts an "essential operation[] of [the] government," just as it does when it requires individuals to disclose information for tax collection. And as Cutshall notes, the Constitution does not provide Arnold "with a right to keep his registry information private."

The judgment based on the order denying Arnold's § 2255 motion is AFFIRMED.

Arnold's motion for appointment of counsel is DENIED.

Can an individual be forced to carry the Government's message?

Washington DC:

Wooley v Maynard
430 U.S. 705 (1997)
Google Scholar (How the --concept-- of Wooley has been used in other cases)

The issue on appeal is whether the State of New Hampshire may constitutionally enforce criminal sanctions against persons who cover the motto "Live Free or Die" on passenger vehicle license plates because that motto is repugnant to their moral and religious beliefs.

Since 1969 New Hampshire has required that noncommercial vehicles bear license plates embossed with the state motto, "Live Free or Die."1 N. H. Rev. Stat. Ann. § 263:1 (Supp. 1975). Another New Hampshire statute makes it a misdemeanor "knowingly [to obscure] . . . the figures or letters on any number plate." N. H. Rev. Stat. Ann. § 262:27-c (Supp. 1975). The term "letters" in this section has been interpreted by the State's highest court to include the state motto. State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972).

Appellees George Maynard and his wife Maxine are followers of the Jehovah's Witnesses faith. The Maynards consider the New Hampshire State motto to be repugnant to their moral, religious, and political beliefs,2 and therefore assert it objectionable to disseminate this message by displaying it on their automobiles.3 Pursuant to these beliefs, the Maynards began early in 1974 to cover up the motto on their license plates.4

On November 27, 1974, Mr. Maynard was issued a citation for violating § 262:27-c. On December 6, 1974, he appeared pro se in Lebanon, N. H., District Court to answer the charge. After waiving his right to counsel, he entered a plea of not guilty and proceeded to explain his religious objections to the motto. The state trial judge expressed sympathy for Mr. Maynard's situation, but considered himself bound by the authority of State v. Hoskin, supra, to hold Maynard guilty. A $25 fine was imposed, but execution was suspended during "good behavior."

On December 28, 1974, Mr. Maynard was again charged with violating § 262:27-c. He appeared in court on January 31, 1975, and again chose to represent himself; he was found guilty, fined $50, and sentenced to six months in the Grafton County House of Corrections. The court suspended this jail sentence but ordered Mr. Maynard to also pay the $25 fine for the first offense. Maynard informed the court that, as a matter of conscience, he refused to pay the two fines. The court thereupon sentenced him to jail for a period of 15 days. He has served the full sentence.

Prior to trial on the second offense Mr. Maynard was charged with yet a third violation of § 262:27-c on January 3, 1975. He appeared on this complaint on the same day as for the second offense, and was, again, found guilty. This conviction was "continued for sentence" so that Maynard received no punishment in addition to the 15 days.

... ... ... ... ...

The State's second claimed interest is not ideologically neutral. The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways. However, where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.14

We conclude that the State of New Hampshire may not require appellees to display the state motto upon their vehicle license plates; and, accordingly, we affirm the judgment of the District Court.

Affirmed.

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See North Carolina: Fourth Circuit Declares North Carolina's "Choose Life" License Plate Offering Unconstitutional

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Paper: Is it constitutional to FORCE sex offender registrants to carry the governments message?

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See Also: Board of Education v Barnette West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)

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Food for Thought:
When RSOs go in to register they provide information to the registry personnel. Then the registry displays certain of that information on a public registry; all state action. i.e., registrant -to state- state to public.

However, driver's licenses and license plates are vastly different. How you ask? Well, who is actually carrying (i.e., displaying) the state's message, the RSO, that is not like the state displaying information on the Internet.

So there are some who think that distinction is crazy? In the U.S. Supreme court, the case of Smith v. Doe (Sex offender registration), during Oral Argument the following discussion took place between Mr. Olson (then Solicitor General for the U.S.) and U.S. Supreme court Justice Kennedy:

Justice Kennedy QUESTION: Could -- could the State require a special mark on your license plate?

MR. OLSON: No, I -- well, I don't know, Justice Kennedy, but I would say that would be considerably different than what's here because that would --

QUESTION: I don't think it's very different.

MR. OLSON: Pardon me?

QUESTION: I don't think it's very different.

MR. OLSON: I -- I respectfully submit that it's a great deal different. That mark on your license plate, or mark on your forehead would go wherever you would go. It would require you to carry the government's message rather than the government supplying the message.

QUESTION: Well, this statute requires you to make the government's message four times a year.

MR. OLSON: It only -- it doesn't require you to make the government's message four times a year. The government's message, I respectfully submit, is made when a citizen submits an inquiry to the State through the Internet listing. All -- it is required four times a year is to advise the government of a current location or current information so that the information on the registry is accurate and -- and up-to-date.

So, who is carrying the message? It is the RSO when it is on his driver's license or license plate. That distinction, following the sentencing where it was not part of the sentence, could very well be construed as further punishment. i.e., a ex post facto violation.

Apparently, there is something in law about, who carries the message to the public, and lawyers know about this. Now to find those lawyers to fight the issue all the way to the U.S. Supreme court. That may be easier said than done.