In this spirit, the United States Court of Appeals for the Eighth Circuit recently considered a Missouri statute that required all registered sex offenders to "avoid all Halloween-related contact with children" and post a sign on their residence on Halloween stating, "No candy or treats at this residence." Thomas Sanderson, a resident of Hazelwood, Missouri challenged the statute on First Amendment grounds. Sanderson argued that the statute's sign provision violated the First Amendment because it compelled him to speak. The Court agreed.
Beginning in 2000, Mr. Sanderson and his family set up elaborate Halloween displays involving decorations, sound effects, and fog machines. But when Sanderson was convicted of a sex offense in 2006 and ordered to serve a term of imprisonment, those displays ceased. While he was imprisoned, Missouri passed the no Halloween statute. Upon his release from custody, Mr. Sanderson asked the St. Louis County Police Department and, later, the Hazelwood Police Department if he was required to abide by the Halloween statute, given it was enacted after the date of his conviction. Both assured him that he had been "grandfathered in" and thus could continue participating in Halloween festivities. For the next fourteen years, Mr. Sanderson's Halloween displays continued, and grew more extravagant with each year. But in 2022, Hazelwood police received a call that a sex offender was participating in Halloween, and Mr. Sanderson was consequently arrested, charged, and convicted for violating the Halloween statute for, among other reasons, not posting a sign.
In court, Mr. Sanderson challenged the constitutionality of the statute's sign provision.
As an initial matter, the First Amendment provides: "Congress shall make no law . . . abridging the freedom of speech . . . " On first blush, this sounds strictly like a prohibition – the government can't restrict speech. In other words, it can't stop people from speaking their minds. And viewed in this light, the Missouri statute doesn't stop Mr. Sanderson from speaking. Rather, it just tells him what to say. And there's the rub. What the First Amendment ultimately protects is citizens' right to expression. So, if Mr. Sanderson doesn't want to post that sign, and the government requires it, his freedom of expression is abridged. And the First Amendment is on the table.
But that doesn't end the analysis. Because the statute's sign provision implicates the First Amendment, it needed to satisfy the "strict scrutiny" standard. That means it needed to establish that the sign provision furthers a compelling interest and is narrowly tailored to achieve that interest. "At trial, the State's witnesses offered several justifications for the sign mandate. Law enforcement officers testified that the signs were beneficial for enforcement purposes because the signs (1) allow them to 'be able to ensure that there is compliancy,' (2) make enforcement of the Halloween statute more efficient, and (3) provide an extra layer of protection for children."
But the Court questioned how the statute accomplished those goals. The statute did not mandate the size of the sign. And the State's witnesses conceded that a hand scrawled post-it note would satisfy the statute. This led the Court to note, "[e]ven if a sign could result in greater efficiency for law enforcement and heightened protection for children, a sign that is not visible to law enforcement or trick-or-treating children fails to serve either purpose." The Court also observed that "the State's sole expert, who testified to the compelling interest by demonstrating that Halloween presented unique risks for grooming that could lead to future abuse, could not provide any evidence for the claim that signs provide any additional protection beyond the other restrictions imposed on registrants in the Halloween statute."
Because Missouri failed to satisfy the strict scrutiny test, Mr. Sanderson won his constitutional challenge. I'm not sure if the Founders would consider this a trick or a treat.