A full Florida appeals court Friday reversed course and upheld the constitutionality of a state requirement that convicted sexual predators have the words “SEXUAL PREDATOR” on their driver’s licenses.
The 5th District Court of Appeal, in a Sumter County case, rejected arguments that requiring the designation on licenses violated First Amendment rights. That came after a panel of the court, in a 2-1 decision in January, ruled the requirement was unconstitutional.
The license designation was challenged by Michael Crist, who was released from prison in 2008 after serving a sentence for a conviction on charges of attempted sexual battery on a child under age 12 and lewd and lascivious molestation, according to court documents. Crist was on probation after being released and had the sexual-predator designation on his driver’s license.
In 2019, a probation officer asked to see the license and noticed Crist trying to scratch off what a court document described as a “happy face emoji” sticker that covered the words SEXUAL PREDATOR. Crist was charged with possession of a driver’s license without the required designation and attempted evidence tampering and was ultimately sent back to prison.
Crist argued that the required sexual-predator designation on his driver’s license was compelled government speech that violated First Amendment rights.
But in a 30-page main opinion Friday, Judge Jordan Pratt rejected the argument.
“Any reasonable observer will understand that it’s the state’s message that Crist is a sexual predator, just as it’s the state’s message that he is licensed to drive in Florida and has a certain ‘date of birth, height, weight, or eye color.’” Pratt wrote, partially quoting another legal ruling. “And by marking Crist’s license — a personal identification card normally hidden from public view — rather than his front yard, office entrance, business advertisements, personal vehicle, or custom website, the state has not compelled Crist to publicly display or disseminate its message.”
Chief Judge Harvey Jay and Judges Eric Eisnaugle, Joe Boatwright, Paige Kilbane and John MacIver joined the main opinion. Judges Adrian Soud and John Harris separately concurred.
“Simply stated, this court makes clear that it remains constitutional for the people of Florida to require a convicted sexual predator such as Crist to have his state-issued Florida driver license marked with the words ‘SEXUAL PREDATOR’ as one means of protecting vulnerable children from those who may desire to sexually abuse them,” wrote Soud, who was the dissenting judge in the January panel ruling.
But Judge Scott Makar, in a dissent Friday joined by Judge F. Rand Wallis, said compelled government speech has limits, including whether it is done in the “least restrictive” way to advance the government’s interests. Makar pointed to rulings by the Louisiana Supreme Court and an Alabama federal court in similar cases as supporting the “conclusion that the SEXUAL PREDATOR designation is not narrowly tailored or the least restrictive means.”
Makar wrote, for example, that the state could use a statute number or other code on driver’s licenses to identify people as sexual predators. It uses a statute number on the driver’s licenses of sex offenders, whose crimes differ from people considered predators.
“A requirement that a registrant publicly wear a governmentally compelled tee shirt or badge saying SEXUAL PREDATOR would be highly effective in notifying the public about the person’s past sexual criminality; but it is doubtful such a requirement would be narrowly tailored to pass constitutional analysis,” Makar wrote. “The same would be true of tee shirts or badges saying FELON, STALKER, MURDERER, and so on for those released into society but who may have committed crimes with elevated risks of recidivism. In a similar way, the SEXUAL PREDATOR designation on driver licenses is not a narrowly tailored means to inform only those persons who have the greater need to know about an individual’s past sexual criminality.”
Makar, who along with Wallis made up the majority in the January panel ruling, also wrote, “Florida laudably has rigorous registration and notification systems designed to closely monitor sexual offenders and sexual predators. The systems inform the public and law enforcement about the location and backgrounds of sexual offenders and sexual predators, which includes notifications to the public and institutions such as schools and churches when sexual offenders and predators reside in their neighborhoods. The designation of SEXUAL PREDATOR on a personal driver license, however, is the type of compelled speech that is a step too far as the Louisiana Supreme Court and an Alabama federal court have held.”
Crist, 50, is an inmate at Marion Correctional Institution, with a potential release date of October 2036, according to information on the Florida Department of Corrections website.
