Reply To: Tenth Circuit COA upholds Oklahoma driver’s license requirement


Kurt Martin

I’m not impressed with the “forced speech” argument that invokes the 1st Amendment. That’s really a desperate attempt at throwing a bunch of arguments at the wall and seeing what might stick. I suppose if a judge is overly emotional and biased with sympathy to the defendant such a 1st Amendment claim might supply a plausible excuse for the judge to rule the way the judge wanted to rule all along, but legally it’s really weak. PARKINGHAM was a real First Amendment case– that registrant was denied any online presence or participation in social media by the law that the U.S. Supreme Court then struck down. I don’t see how anything that the State puts on your driver’s license that is mandated by state law can be seen as “your” communication that the government is forcing you to make.

The “cruel and unusual punishment” argument would be stronger these days, as a case of first impression, but since other courts have found that sex offender registrations are not “punishment” at all, but merely public safety measures mandated by politicians, not by judges during sentencing, that was always going to be an uphill battle.

I’d like to see sex offender restrictions (not just the registry itself, but the long list of things you can’t do by order of State law) found to be categorically in violation of substantive due process. The government simply can’t take your freedom by looking at your criminal history and declaring that you and everybody else who has certain types of criminal records are a threat to society and must have your freedom limited for the good of others. That kind of freedom-stripping of citizens’ rights should require an INDIVIDUALIZED assessment, and only the few people probably prone to reoffending could be restricted. If individual hearings were held, they would have to be fair, otherwise “procedural due process” rights would be the ones violated.