United States v. Luther Arnold , 740 F.3d 1032 ( 2014 )

Case: 12-60854 Document: 00512511312 Page: 1 Date Filed: 01/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60854 January 24, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
LUTHER ARNOLD,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
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.
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No. 12-60854
I.
In 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 Mar-
shall 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 sen-
tence 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
II.
We have not addressed whether SORNA’s registration requirements
violate the First Amendment’s prohibition of compelled speech. 5 We therefore
1See 42 U.S.C. § 16913 (2012) (“A sex offender shall register, and keep the registration
current, in each jurisdiction where the offender resides, where the offender is an employee,
and where the offender is a student.”).
2 18 U.S.C. § 2250(a) (2012) (“Whoever—(1) is required to register under [SORNA];
(2)(A) is a sex offender as defined for the purposes of [SORNA] . . . ; or (B) travels in interstate
or foreign commerce . . . ; and (3) knowingly fails to register or update a registration as
required by [SORNA] shall be fined under this title or imprisoned not more than 10 years, or
both.”).
3 28 U.S.C. § 2255(a) (2012) (“A prisoner in custody under sentence of a court estab-
lished by Act of Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or correct the sentence.”).
4 Because we granted the certificate of appealability only on the First Amendment
issue, we do not need to address the other arguments Arnold raises.
5Cf. 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.”).
2
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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.
In Barnette, a state statute required public-school students to participate
in daily public ceremonies by honoring the flag with words and traditional
salute gestures. The Court held that “a ceremony so touching matters of opin-
ion and political attitude may [not] be imposed upon the individual by official
authority under powers committed to any political organization under our Con-
stitution.” Barnette, 319 U.S. at 636. In explaining why the First Amendment
prohibits a state actor from compelling such speech, the Court noted, “If there
is any fixed star in our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion or force citizens to confess by word or act their faith
therein.” Id. at 642.
In Maynard, New Hampshire required all noncommercial vehicles to
bear a license plate embossed with the state’s motto: “Live Free or Die.”
Maynard, 430 U.S. at 707. Because that slogan conflicted with his faith,
Maynard contended that the state law coerced him into “advertising a slogan
which [he found] morally, ethically, religiously and politically abhorrent.” Id.
at 713.
The Court first emphasized its holding in Barnette, that the First
Amendment protects the right to remain silent. 6 In particular, the Court
6 See Maynard, 430 U.S. at 714 (“A system which secures the right to proselytize relig-
ious, political, and ideological causes must also guarantee the concomitant right to decline to
foster such concepts. The right to speak and the right to refrain from speaking are comple-
mentary components of the broader concept of individual freedom of mind.” (internal quota-
tion marks and citations omitted)).
3
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suggested that the state could violate that protection in two ways: (1) by forcing
an individual, through his speech, to affirm a “religious, political [or] ideology-
ical cause[]” that the individual did not believe in; or (2) by forcing “an indi-
vidual, as part of his daily life . . . to be an instrument for fostering public
adherence to an ideological point of view he finds unacceptable.” 7 Though rec-
ognizing that Barnette “involved a more serious infringement upon personal
liberties than the passive act of carrying the state motto on a license plate,”
the Court held that New Hampshire could not constitutionally require citizens
to display the state motto on their license plates. Id. at 715. 8
In regard to lower-court precedent, Arnold has also not identified any
decisions striking a registration requirement as being compelled speech in
violation of the First Amendment. Although sex offenders have brought a
myriad of challenges to registration requirements, it does not appear that any
7 The Court further explained this concept of compelled speech as requiring the indi-
vidual to be a “mobile billboard” for the state’s message. See id. at 715 (“New Hampshire’s
statute in effect requires that appellees use their private property as a ‘mobile billboard’ for
the State’s ideological message or suffer a penalty, as Maynard already has.”).
8 The Supreme Court has also discussed compelled speech in the context of commercial
speech. See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471
U.S. 626, 650 (1985) (“Appellant [] overlooks material differences between disclosure require-
ments and outright prohibitions on speech. In requiring attorneys who advertise their wil-
lingness to represent clients on a contingent-fee basis to state that the client may have to
bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from
conveying information to the public; it has only required them to provide somewhat more
information than they might otherwise be inclined to present. We have, to be sure, held that
in some instances compulsion to speak may be as violative of the First Amendment as prohi-
bitions on speech . . . . But the interests at stake in this case are not of the same order as
those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens
to confess by word or act their faith therein.” (internal quotation marks and citations omit-
ted)). See generally Jennifer M. Keighley, Can You Handle the Truth? Compelled Commercial
Speech and the First Amendment, 15 U. PA. J. CONST. L. 539 (2012). Those cases, however,
have no bearing on the question before us.
4
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court has squarely addressed this type of compelled-speech challenge. 9
In United States v. Sindel, 53 F.3d 874 (8th Cir. 1995), albeit in a
different context, the court rejected a claim that compelled disclosure of infor-
mation on an IRS form was unlawful compelled speech: “There is no right to
refrain from speaking when ‘essential operations of government require it for
the preservation of an orderly society—as in the case of compulsion to give
evidence in court.’” Id. at 878 (quoting Barnette, 319 U.S. at 645).
And in Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), a sex offender
challenged Tennessee’s Sex Offender Registration and Monitoring Act.
Although not bringing the compelled speech argument Arnold presses, Cut-
shall argued that the registration requirements violated his constitutional
“right to privacy.” See id. at 480. The court rejected that theory, holding that
“the Constitution does not provide Cutshall with a right to keep his registry
information private.” Id. at 481.
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 Con-
gress 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
9 See generally Alex B. Eyssen, Does Community Notification for Sex Offenders Violate
the Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment? A Focus on
Vigilantism Resulting from “Megan’s Law”, 33 ST. MARY’S L.J. 101 (2001); Stephen R. McAl-
lister, “Neighbors Beware”: The Constitutionality of State Sex Offender Registration and
Community Notification Laws, 29 TEX. TECH L. REV. 97 (1998); Robin Morse, Federalism
Challenges to the Adam Walsh Act, 89 B.U. L. REV. 1753 (2009).
10 See Applicability of the Sex Offender Registration and Notification Act, 28 C.F.R.
§ 72 (2007) (“The SORNA reforms are generally designed to strengthen and increase the
effectiveness of sex offender registration and notification for the protection of the public, and
to eliminate potential gaps and loopholes under the pre-existing standards by means of which
sex offenders could attempt to evade registration requirements or the consequences of regis-
tration violations.”).
5
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Barnette and Maynard do not therefore require us to conclude that the govern-
ment 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 “essen-
tial operation[] of [the] government,” just as it does when it requires individu-
als to disclose information for tax collection. And as Cutshall notes, the Con-
stitution 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.
6