There’s no evidence anywhere that even remotely suggests registered sex offenders leverage Halloween to lure victims to their homes. It’s just as untrue and ridiculous as the annual assertions people are lacing (cheap) candy with (expensive) drugs for… well, those reasons go completely unexplored.
Sex offenders are already subject to a considerable number of restrictions, which often include being forced to live as far away from any children as possible. But that doesn’t stop grandstanding law enforcement officials from pretending they’re doing something for the children by continuing to punish adults who’ve already served their time.
When officials start to think they can keep punishing people who’ve done their jail time and are following their post-release mandates, that’s when things get litigious. And that’s when law enforcement officials start finding out it’s not ok to continue to heap additional punishment on people. It’s unconstitutional.
Back in 2018, Sheriff Gary Long of Butts County, Georgia found this out the hard way. He and his deputies started placing these signs in the yards of registered sex offenders:
This stupidity managed to be topped by Grovetown, Georgia’s mayor, who claimed he could keep everyone safe by locking up registered sex offenders in city hall for a few hours every Halloween night to keep them from bothering any kids. The problem with that is, well, the Constitution. You can’t just detain people against their will for any length of time, much less three or four hours — not if there’s no constitutionally supported reason to do so.
All of this ridiculousness finally came to an end, albeit four years later when the Eleventh Circuit Appeals Court made it clear, in no uncertain terms, that planting “no trick-or-treat” signs in sex offenders’ yards was compelled speech — the sort of thing that’s always an extremely obvious violation of the First Amendment.
The state of Missouri had the same bad idea. It passed a law that did the same thing: compelled speech. The statute required sex offenders to post signs at their homes stating “No candy or treats at this residence” every October 31st. Somehow, this law managed to remain on the books for more than 15 years (it was enacted in 2008) before being successfully challenged.
But the law is no longer, for the time being. A ruling [PDF] issued by a Missouri federal court puts the obvious conclusion in plain writing: compelled speech is — as it always has been — unconstitutional. (via Courthouse News Service)
In this case, there’s already been actual harm. Thomas Sanderson, who was convicted in 2006, continued to hand out candy at the house he shared with his girlfriend, reasoning (incorrectly) that the 2008 law did not apply to him since his conviction occurred before the law was passed. He was arrested in 2022 on Halloween night by local police officers. The current police chief testified that his predecessor didn’t do anything to enforce the law, hence the lengthy gap between the law’s passage (2008), the plaintiff’s placement on the sex offender registry (2006), and his 2022 arrest.
During testimony, this somewhat hilarious fact about the unconstitutional law was related to the court by multiple government witnesses.
These witnesses confirmed that the sign posting requirement does not define the size of the sign or the size of the font for the phrase, “No candy or treats at this residence.” These witnesses also confirmed that registered sex offenders could display the sign at the back of the residence, or even inside the residence, and still be in compliance with the sign posting requirement.
In other words, the law was just some performative bullshit meant to score easy dunks on sex offenders while lawmakers pretended to care about the children. And the plaintiff definitely has standing to sue to have the law ruled unconstitutional because he had already been arrested for violating it.
Those facts mean the government (represented here by state Attorney General Andrew Bailey and the chief of the police department that arrested him) had no options to get this lawsuit dismissed. The rest of the evidence on hand just makes it that much easier for the court to find the law unconstitutional.
In the run-up to its conclusion, the court notes the Sheriff of Butts County case that ended with the Eleventh Circuit reminding the law enforcement official that compelled speech is clearly unconstitutional and that there’s a ton of case law already on the books that makes it legally implausible to claim the sheriff couldn’t have possibly known he was violating sex offenders’ rights.
The end result is the Missouri court tearing apart the compelled speech part of the law, along with the rationales the government offered in defense of it.
First, a sign stating “No candy or treats at this residence” does not clarify the danger that
the statute serves to mitigate. The sign contains no warning that there is a convicted sex offender or other dangerous person at that residence. The sign posting requirement does not even dictate the font size or location of the sign to ensure visibility to children or others.
[…]
More significantly, the other restrictions mandated in the Halloween Statute adequately address all of Defendants’ interests. To wit, sex offenders must “[a]void all Halloween-related
contact with children.” See Mo. Rev. Stat. § 589.426.1(1). Sex offenders must “[r]emain 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.” Id. § 589.426.1(2). Sex offenders must also “[l]eave all outside residential lighting off during the evening hours after 5 p.m.” Id. § 589.426.1(4). These provisions prevent sex offenders from being in contact with children outside trick-or-treating and also deter children from venturing onto the properties of sex offenders.
Additionally, law enforcement witnesses testified that the sex-offender registry, which contains each registrant’s name, address, photograph, and convicted offense information, is available on the Missouri State Highway Patrol’s website. This further diminishes the need to require registered sex offenders to disseminate the same information on signs on their private property. The evidence presented has not shown that the sign posting requirement adds any value to protect children from Plaintiff, or other registered sex offenders, on Halloween. Even without the sign posting requirement, Defendants are free to enforce the other sections of the Halloween Statute. Plaintiff can still be charged and prosecuted for keeping his residence’s lights on, participating in Halloween activities that involve contact with children such as handing out candy to trick-or-treaters, or leaving his house absent just cause on Halloween. The Court does not discount the importance of the government’s interest in protecting children from sex offenders on Halloween, but the evidence fails to show that the sign posting requirement is narrowly tailored to achieve that interest in the least restrictive manner.“
And with that, the compelled speech clause of the so-called “Halloween Law” no longer exists, permanently blocked by the Missouri court.
For these reasons, the Court concludes that Plaintiff has met his burden of establishing that declaratory and permanent statewide injunctive relief is warranted. Further, because the
Court has found that Missouri Revised Statute Section 589.426.1(3) is unconstitutional, it is
therefore unenforceable against not only Plaintiff, but all others subject to this section of the
Halloween statute.
The state should have seen this coming. You can’t compel speech. And, at the very least, if you’re going to try to compel speech, you should make sure the part of the law that compels speech actually accomplishes the intent of the law. Something so poorly written someone can comply without posting a sign anywhere trick-or-treaters might see it shows this law was passed solely so legislators could appear to be doing something about something. In the end, they all ended up looking like fools.