Michael Crist v. State of Florida

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2022-2966

LT Case No. 2019-CF-001352

_____________________________

MICHAEL CRIST,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Sumter County.

Mary P. Hatcher, Judge.

Matthew J. Metz, Public Defender, and Jane Almy, Assistant

Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Richard A.

Pallas, Jr., Assistant Attorney General, Daytona Beach, for

Appellee.

January 10, 2025

MAKAR, J.

At issue are governmentally compelled designations on the

front of Florida driver licenses and ID cards of people convicted of

sexual crimes. Here is an exemplar from the website of the

Florida Department of Highway Safety and Motor Vehicles:

The Department explains that the “Florida driver license and ID

card allows for the identification of sexual predators and sexual

offenders with a blue identifier on the bottom right of the front of

the card. Sexual predators will have ‘Sexual Predator’ spelled

out on the card, while sexual offenders have ‘943.0435,

F.S.’ listed in this area.” See Florida’s NEW Driver License and

ID Card, Florida Highway Safety and Motor Vehicles,

https://www.flhsmv.gov/driver-licenses-id-cards/newdl/ (last

visited June 7, 2024). This case involves the “SEXUAL

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PREDATOR” designation, not the sexual offender designation;

the latter—as indicated—uses only the number of the sexual

offender statute, “section 943.0435,” rather than a phrase such as

“SEXUAL OFFENDER,” or the like. In general, sexual predators

are sexual offenders who have committed two or more sexual

1 Because this case involves a Florida driver license, rather

than a Florida ID card, references to the former will generally

include the latter for convenience. In addition, references will be

to a “driver license,” the phrase used in Florida Statutes, rather

than the colloquial “driver’s license.” See § 322.01(18), Fla. Stat.

(2024).

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offenses, who used physical violence in such offenses, or who

preyed on children. § 775.21(3)(a), Fla. Stat. (2024).

In 2001, at the age of 26, Michael Crist, attempted to engage

in unlawful conduct with a minor under the age of 12. In 2002, he

pled no contest to violations of section 794.011(3), Florida

Statutes, (attempted sexual battery on a child under the age of

12), and section 800.04(5)(a) & (b), Florida Statutes, (lewd and

lascivious molestation), resulting in eight years in prison and

seventeen years of supervision. He was released from custody in

May 2008 and thereafter resided in Sumter County.

Over a decade later, a probation officer went to Crist’s home

to conduct a sexual predator registration check; Crist had no

prior supervisory violations at that time. The officer asked for

Crist’s driver license but snatched it away when Crist appeared

to be scratching off a sticker (a Happy Face emoji) placed over the

SEXUAL PREDATOR designation. Crist was charged with

possession of a driver license without the required designation

and for tampering with evidence (by attempting to scratch off the

sticker).

Crist moved to have the statutes requiring the SEXUAL

PREDATOR designation (sections 322.212(5)(c) and 322.141

(3)(a), Florida Statutes) declared unconstitutional as applied to

him. He relied on recent cases from the Louisiana Supreme Court

and a federal district court in Alabama, each holding that similar

designations amounted to compelled speech in violation of the

license holder’s constitutional rights under the First Amendment.

The trial court, however, held that (a) Crist failed to provide any

Florida caselaw that the sexual predator designation on Crist’s

license was compelled speech and (b) the designation “is less

intrusive and less restrictive than any alternative that would still

meet the compelling interest of public notification.” Crist appeals

the denial of his motion.

I.

Florida has a compelling governmental interest in protecting

the public from persons who have been convicted of offenses

deemed sexual predation. That’s because the legislature has

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declared that sexual predators “present an extreme threat to the

public safety” and “are extremely likely to use physical violence

and to repeat their offenses.” § 775.21(3)(a), Fla. Stat. Indeed, the

legislature has said that Florida “has a compelling interest in

protecting the public from sexual predators and in protecting

children from predatory sexual activity, and there is sufficient

justification for requiring sexual predators to register and for

requiring community and public notification of the presence of

sexual predators.” Id. § 775.21(3)(c).

Because of the “high level of threat that a sexual predator

presents to the public safety, and the long-term effects suffered

by victims of sex offenses,” the State has sufficient “justification

to implement a strategy that includes”:

3. Requiring the registration of sexual predators, with a

requirement that complete and accurate information be

maintained and accessible for use by law enforcement

authorities, communities, and the public.

4. Providing for community and public notification

concerning the presence of sexual predators.

Id. § 775.21(3)(b)3. & 4. Pursuant to legislative directive, Florida

has online registration and notification systems. Sexual offenders

and sexual predators are required to register and provide

detailed information on a real-time basis such as address, phone

number, internet identifiers, autos, and in-state travel. Their

photos and personal information (race, sex, hair color, eye color,

height, weight) are posted for identification. A link on the site

produces printable flyers with a registrant’s photo, background,

offenses and even a QR code (specific to each registrant) for

posting. Florida provides online search engines for locating

sexual offenders and sexual predators that generate maps so the

public can see if such individuals live in their neighborhoods. The

system also has a notification/tracking feature that allows

members of the public to receive an email whenever a sexual

offender or sexual predator moves close to an address in Florida,

which could be a home, workplace, school, daycare, and so on.

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This case does not directly involve the registration and

notification systems or the search engines that are available for

law enforcement and the public to identify, locate, and receive

notifications about sexual offenders and predators. As a general

matter, these systems are deemed constitutional with minimal

judicial scrutiny because they have a rational basis. See, e.g., Doe

v. Moore, 410 F.3d 1337, 1344−48 (11th Cir. 2005) (finding that

the registration and notification requirements under the Sex

Offender Act do not infringe on sex offenders’ substantive due

process rights because it is “rationally related to a legitimate

government interest”); United States v. Ambert, 561 F.3d 1202,

1209−10 (11th Cir. 2009) (finding Moore’s substantive due process

analysis applicable where “[t]he same putative ‘right’ of a sexual

offender to refuse to register and to prevent publication is at

issue in this case under a similar national registration statute,

and the restrictions contained in the federal statute, similarly,

are rationally related to Congress’ legitimate goal in protecting

the public from recidivist sex offenders”); see also Butler v. State,

923 So. 2d 566, 569 (Fla. 4th DCA 2006) (analyzing Moore).

Though these systems are generally valid and not under scrutiny

in this case, they are relevant in analyzing the legal issue

presented: whether the designation of “SEXUAL PREDATOR” on

a Florida driver license violates constitutional principles as a

form of compelled speech by the license holder that is not

narrowly tailored under the applicable strict scrutiny test, given

the registration and notification systems just described.

A. Florida Driver Licenses and Compelled Speech.

The first step is determining the nature of a Florida driver

license. Is it a governmentally controlled forum containing

government speech, private speech, or a hybrid of the two? The

State candidly and justifiably concedes that it has not argued

that the SEXUAL PREDATOR designation on a Florida driver

license is purely government speech subject to little or no judicial

scrutiny. Nor could it.

On its face, a Florida driver license is a conglomeration of

governmental and personal speech, some of it compelled by law to

be on the front of the license (such as the “Sexual Predator”

designation) and some of it voluntarily placed there (such as the

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“Organ Donor,” “Veteran,” “Deaf” and “Developmentally

Disabled” designations). The back of the card has additional

voluntary designations for holders of Lifetime Florida Wildlife

Commission freshwater fishing, hunting, saltwater fishing, and

sportsman licenses, among others; symbols such as a bass, deer,

sailfish, and rifle/rod are used. Florida driver licenses are

essentially speech hybrids.

With its mixture of information, images, and symbols, a

Florida driver license cannot be seen as simply a plastic card

containing only governmental speech. That’s because several of

its features are private or personal information that license

holders want to convey to others. Plus, most of the

governmentally required information, such as address, date of

birth, sex, height, and sexual crimes, is not purely governmental;

it is factual information about the license holder that is personal

only to him individually. Some people don’t like certain facts

about themselves to be known, such as their confidential home

addresses (e.g., police officers, public officials, etc.) or their age

(for vanity or other reasons), their sex presented in a binary mode

(a contemporary matter of controversy), or that they are a certain

height. In short, a Florida driver license is not purely a

governmentally controlled forum with only governmentally

approved viewpoints or speech; it is a hybrid of government and

private speech.

Even if it were purely government speech it would still be

subject to constitutional analysis under the compelled speech

doctrine when the governmental message is placed on a license

tag, a driver license, or any other item that is readily associated

with an individual. The Supreme Court directly addressed this

point, stating the “Free Speech Clause itself may constrain the

government’s speech if, for example, the government seeks to

compel private persons to convey the government’s speech.”

Walker v. Tex. Div., Sons of Confederate Vets., Inc., 576 U.S. 200,

208 (2015); see Doe 1 v. Marshall, 367 F. Supp. 3d 1310, 1325

(M.D. Ala. 2019) (“But the fact that a license is government

speech does not mean it is immune from the compelled speech

analysis.”); see also State v. Hill, 341 So. 3d 539, 552 (La. 2020)

(“Thus, even though an identification card is government speech,

a compelled speech analysis may still be required.”). Here, the

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governmental message is “I, as the holder of this license, am a

sexual predator.”

Next is the question of whether the sexual predator

designation is “compelled speech.” As just mentioned, a Florida

driver license is not immunized from the compelled speech

doctrine simply because it is governmentally controlled and

contains some governmentally approved information. The State

concedes that even if a Florida driver license was considered

governmental speech, it would still be subject to judicial review

as compelled speech.

Indeed, the license plate in Wooley v. Maynard, was

governmentally controlled and contained an ideological

expression (“Live Free or Die”) that the government supported,

but that didn’t stop the United States Supreme Court from

concluding that Wooley, who disagreed with the slogan, had a

constitutional right not to display it. 430 U.S. 705, 716−17 (1977).

Government speech is a different animal from compelled speech.

The former focuses on the government’s interest in expressing its

own views without compelling a private person to communicate

information or a message he does not wish to convey; the latter

involves the government compelling a person to do so.

The test for compelled speech, applied here, is whether the

SEXUAL PREDATOR designation communicates information

compelled by the government that is readily linked or associated

with the plaintiff. See Cressman v. Thompson, 798 F.3d 938, 949–

51 (10th Cir. 2015); see generally Wooley, 430 U.S. at 714−17.

This test is easily met. The designation is compelled by the

government over Crist’s objection, and the designation is directly

associated with Crist: it is a designation on a driver license that

is personal to him alone. See Doe 1, 367 F. Supp. 3d at 1326

(“Identification cards, by contrast, are personalized. They are

meant to convey substantive personal information about their

holders. They are meant to be displayed, never to be given

away.”).

By compelling that the designation be on Crist’s license, the

State is directly conveying that information through Crist, who

must have his driver license in his possession 24/7. He is required

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to present it upon demand at any time or place. It is universally

understood to be his driver license, one that he must present in

myriads of daily transactions with businesses, government

offices, and others that require personal identification. He paid

for it, he must possess it, and he has a due process right in

retaining the privilege of using it. The question is not who owns

or has a property interest in a driver license, but whether it is

readily linked or associated with its holder; here, that is clearly

Crist. His driver license is not a duly issued official state

document in a government filing cabinet (or computer file) or

posted on a governmental website. It is governmentally

regulated, but that does not diminish the fact that the license is

personal and readily identifiable as Crist’s personal license with

information related directly to him. See Doe 1, 367 F. Supp. 3d at

1326; Mariach v. Spears, 570 U.S. 48, 57 (2013) (“To obtain a

driver’s license . . . state DMVs, as a general rule, require an

individual to disclose detailed personal information, including

name, home address, telephone number, Social Security number,

and medical information.”). In short, it is Crist’s identity on the

card, not that of the government; no reasonable observer would

conclude it is the government’s identity that is featured on Crist’s

driver license.

Plus, the State’s ability to take away a driver license under

certain circumstances does not give the government the

unreviewable right to place any message or information it wants

on it and force persons to convey that message or information to

others. Just like a driver license, a Florida license plate is subject

to forfeiture, but as in Wooley the government cannot compel a

message on it. Government regulation of driver licenses likewise

does not give the government the right to compel whatever

message the government desires. Just because the government

regulates—or even owns—lapel buttons or t-shirts emblazoned

with SEXUAL PREDATOR doesn’t mean it can force individuals

such as Crist to wear them at all times and all places; nor could it

force the expression of political viewpoints (“Vote Democratic!”) or

causes (“Build the Wall!”). As the Supreme Court has reminded

us, the “Free Speech Clause itself may constrain the

government’s speech if, for example, the government seeks to

compel private persons to convey the government’s speech.”

Walker, 576 U.S. at 208.

8

Furthermore, a driver license is readily viewable to a broad

swath of members of the public who require it for transacting

business and other essential activities. It is not like a road-side

billboard or a car’s license plate, both of which are in public

spaces and visible to members of the public generally. But both

do not directly or necessarily convey information about a specific

person or who even owns them. The license tag in Wooley, for

example, was on Wooley’s car, but observers would not

necessarily know who owned the car. In sharp contrast, a Florida

driver license is a privately possessed card that displays

compulsory information that is directly personal to the license-

holder and thereby readily associated with the individual person

whose face and name are on it. As the court in Hill stated, “[e]ven

more so than a license plate on a car, an identification card is

personalized to such an extent that it is readily associated with

the bearer.” Hill, 341 So. 3d at 549.

A Florida driver license is a forum in which a license holder,

who has been convicted of a sexual offense, is compelled to

disclose the fact of his criminal history against his wishes. That a

fact is compelled rather than a political opinion or policy doesn’t

matter. The Supreme Court has made clear that the compelled

speech doctrine applies whether the government compels political

speech or facts. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487

U.S. 781, 797–98 (1988) (stating that its precedents “cannot be

distinguished simply because they involved compelled statements

of opinion while here we deal with compelled statements of ‘fact’:

either form of compulsion burdens protected speech”).

As both the Louisiana Supreme Court and the Alabama

federal district courts have concluded, a compelled disclosure

emblazoned on a driver license is a form of compelled speech

subject to constitutional limitations. Indeed, the Alabama federal

court recently concluded that an identification card with a sexual

offender designation is compelled speech.

This is so for the same reasons that the court previously

found the “CRIMINAL SEX OFFENDER” ID label

compelled speech. See Doe 1, 367 F. Supp. 3d at 1323–27

(explaining why an ID label requirement attached to a

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certain group of people constitutes compelled speech).

Contrary to Defendant’s assertions, the challenged

provision does not simply require sex offenders to

“maintain and possess an ID;” it requires the ID to bear

a specific, expressive message. Indeed, the explicit

purpose of the provision is to express a class-based

message. Like a license plate that says, “Live Free or

Die,” Wooley, 430 U.S. at 714, 97 S.Ct. 1428, or a yard

sign that warns away citizens from a sex offender’s

home, McClendon v. Long, 22 F.4th 1330, 1333 (11th

Cir. 2022), a required message classifying someone as a

sex offender on their personal ID constitutes compelled

speech.

McGuire v. Marshall, No. 2:19-CV-174-WKW, 2024 WL 2401833,

at *60 (M.D. Ala. May 23, 2024) (citation and footnote omitted).

Similarly, requiring a message declaring a person is a SEXUAL

PREDATOR on his personal driver license constitutes compelled

speech, which may be constitutional if it meets the applicable

judicial test.

B. The Judicial Test

The final step is applying the proper judicial test to assess

whether the means used to advance the government’s compelling

interest in protecting the public from recidivism by sexual

predators is permissible under free speech precedent. The few

cases that discuss the proper test in the context of sexual

offenders/driver licenses apply the most difficult test, that of

strict scrutiny. See, e.g., Hill, 341 So. 3d at 545; Doe 1, 367 F.

Supp. 3d at 1326.2

2 An anomaly identified in Hill is that polar opposite tests

apply depending on how a “branded-identification card” is

characterized, i.e., whether it “amounts to government speech or

compelled speech.” Hill, 341 So. 3d at 545. “If compelled speech,

the branded identification card faces strict scrutiny. If

government speech, the branded identification card faces little to

no scrutiny.” Id. (emphases added). We note that the Supreme

Court in recent years has softened the judicial test for content-

based regulations in limited situations, but not yet in the

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They do so in part based on the Supreme Court’s decision in

Wooley, which held that New Hampshire could not punish Mr.

Wooley for covering up the state motto, “Live Free or Die,” on his

state-issued license plate. The rationale in Wooley was that even

when a state’s purpose in compelling a message on a vehicle’s

license plate is “legitimate and substantial,” that “purpose cannot

be pursued by means that broadly stifle fundamental personal

liberties when the end can be more narrowly achieved. The

breadth of legislative abridgement must be viewed in the light of

less drastic means for achieving the same basic purpose.” 430 U.S.

at 716 (citation omitted) (emphases added). The highlighted

language emphasizes the narrowness of the state’s choices when

it chooses to compel a person to convey information that they do

not wish to express or associate with.

The Alabama and Louisiana cases also point to the

multitude of Supreme Court precedents holding that a content-

based restriction on speech must pass strict scrutiny, meaning

that the state “must have a compelling interest, and it must have

adopted the least restrictive means of achieving that interest.”

Doe 1, 367 F. Supp. 3d at 1326 (citing Reed v. Town of Gilbert,

576 U.S. 155, 163 (2015) (stating that content-based restrictions

“are presumptively unconstitutional and may be justified only if

the government proves that they are narrowly tailored to serve

compelling state interests”)); see also Hill, 341 So. 3d at 553 (“The

branded identification card is compelled speech, and it is a

compelled speech context. See, e.g., Vidal v. Elster, 602 U.S. 286,

300 (2024) (“Because of the uniquely content-based nature of

trademark regulation and the longstanding coexistence of

trademark regulation with the First Amendment, we need not

evaluate a solely content-based restriction on trademark

registration under heightened scrutiny.”); Davenport v. Wash.

Educ. Ass’n, 551 U.S. 177, 190 (2007) (noting that content-based

regulations of speech are presumptively unconstitutional, but

that in the “unique context of public-sector agency-shop

arrangements, the content-based nature of [the statute at issue]

does not violate the First Amendment”). Whether it or our

supreme court decides to do so is their prerogative alone.

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content-based regulation of speech that consequently must pass

strict scrutiny.”).

Both courts concluded that requiring the display of “sexual

offender” or the like on an individual’s state-issued identification

card is not the least restrictive way of advancing the state’s

interest. In Hill, the court concluded as follows:

The branded identification card is compelled

speech, and it is a content-based regulation of speech

that consequently must pass strict scrutiny. While the

state certainly has a compelling interest in protecting

the public and enabling law enforcement to identify a

person as a sex offender, Louisiana has not adopted the

least restrictive means of doing so. A symbol, code, or a

letter designation would inform law enforcement that

they are dealing with a sex offender and thereby reduce

the unnecessary disclosure to others during everyday

tasks. The sex offender registry and notification is

available to those who have a need to seek out that

information, while also not unnecessarily requiring

disclosing that information to others via a branded

identification. As Louisiana has not used the least

restrictive means of advancing its otherwise compelling

interest, the branded identification requirement is

unconstitutional.

Hill, 341 So. 3d at 553. Likewise, in Doe 1, the court concluded

that:

The State has a compelling interest in enabling law

enforcement to identify a person as a sex offender. But

Alabama has not adopted the least restrictive means of

achieving that interest. By using “CRIMINAL SEX

OFFENDER” instead of a single letter, the State goes

beyond what is necessary to achieve its asserted

interest.

Doe 1, 367 F. Supp. 3d at 1326 (internal citation omitted). The

court noted that Alabama conceded that it “could use a single

letter to designate sex offenders” and that “law enforcement

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officers would know what that single letter meant.” Id. at

1326−27. As such, “using one letter would keep officers informed

while reducing the unnecessary disclosure of information to

others.” Id. at 1327 (footnote omitted). Notably, Alabama’s

legislature responded to Doe 1 by dispensing with the CRIMINAL

SEX OFFENDER designation on identification cards in favor of

the “code ‘CV606’ in small black font,” which was upheld as

constitutional. McGuire, 2024 WL 2401833, at *60.

Both courts focused on the law enforcement’s need to identify

sexual offenders via a symbol, code, or letter on the identification

card. The court in Hill also highlighted that a state-compelled sex

offender registry and notification system was publicly available

“to those who have a need to seek out that information, while also

not unnecessarily requiring disclosing that information to others

via a branded identification.” Hill, 341 So. 3d at 553.

The reasoning of both the Louisiana Supreme Court and the

Alabama federal court are persuasive and support the conclusion

that the SEXUAL PREDATOR designation is not narrowly

tailored or the least restrictive means, thereby failing strict

scrutiny. As a content-based restriction, the designation is

presumptively unconstitutional, requiring that the “government

proves that [the restriction is] narrowly tailored to serve

compelling state interests.” Reed, 576 U.S. at 163. Unlike

legislation generally, which is presumed constitutional, the

restriction at issue is presumed to be unconstitutional because it

forces an individual to convey governmentally compelled

information over his objection. It does not mean the government

automatically loses, only that it must prove that its restriction is

narrowly tailored and no broader than necessary.

Here, the State relies on the statutory language of the

legislature’s purpose for a registration and notification system of

sexual offenders and sexual predators. The legislature identified

two goals: registration and notification, both of which are

substantially advanced by Florida’s comprehensive registration

and notification systems, by which the public can freely obtain

information and emails about sexual offenders and predators who

live in or move into their neighborhoods. The State clearly

advances its compelling interest through these systems, which

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meet constitutional standards by disseminating information

broadly without compelling speech by individual registrants.

The question, however, is whether—given the robust

registration and notification systems in place for use by the

general public and law enforcement—the State has proven it has

no less intrusive means and must necessarily use the SEXUAL

PREDATOR designation on driver licenses rather than use a code

or statute number as it does for sexual offenders. Existing

precedent, though limited, holds that the use of a code or number

is constitutional under compelled speech analysis because they

provide information to persons with a need to know it; it is

narrowly tailored in that sense. Persons needing to screen for

sexual predators can ask to see a driver license and determine if

it has the code/number. The court in Doe 1 pointed out that the

“general public most likely would not know what that single

letter meant” thereby reducing the potential for overbroad

disclosures of compelled speech. Doe 1, 367 F. Supp. 3d at 1327.

In other words, compelled use of the SEXUAL PREDATOR

designation to the world at large is overbroad if a more narrow

and functional means of communication is available.

The point of strict scrutiny is that the government must

carefully tailor a compelled speech policy that is no broader than

necessary to advance its interest in protecting the public. In this

regard, not every situation calls for the compelled public

disclosure that an individual has previously committed a sex

crime. 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. 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.

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The conclusion that the “SEXUAL PREDATOR” designation

on Crist’s driver license is impermissibly compelled speech under

the prevailing judicial test in no way involves the use of judicial

power to compel a specific change to the statutory law. It merely

holds that this specific designation is off-limits under the Bill of

Rights enacted by and for the People; no judicially compelled

change of law is made. Whether the government chooses to use a

particular number, symbol, color, or font size in place of the

current designation is not something a court directs or involves

itself in. The State might choose to use statute numbers but use

red for sexual predators and blue for sexual offenders; it might

use symbols that the public readily understands; it might choose

to issue separate free-standing sexual offender identification

cards that sexual offenders and sexual predators must present

when asked. These are decisions for the legislative and executive

branches, not the judicial branch.

II.

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. The availability of numbers, symbols, or codes in various

colors and fonts, as an example, shows a lack of narrow tailoring

and that the government’s compelling interest in protecting the

public can be achieved without compelling speech impermissibly.

We emphasize that our decision is based on the existing United

States Supreme Court and lower court precedent on compelled

speech analysis and not out of sympathy for those who have

committed the underlying crimes for which they have served

their punishment. Because this issue is one of great public

importance, the following question is certified for the Florida

Supreme Court’s consideration:

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Does the requirement that a Florida driver license

contain the designation SEXUAL PREDATOR for those

persons within that category constitute compelled

speech that is unconstitutional under the strict scrutiny

test?

Because of the importance and unsettled nature of the issue, we

withhold issuance of the mandate and stay our decision, holding

it in abeyance to allow for Florida Supreme Court review.

WALLIS, J., concurs.

SOUD, J., dissents with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

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Case No. 5D2022-2966

LT Case No. 2019-CF-001352

SOUD, J., dissenting.

Is it constitutional for the People of Florida to require a

convicted sexual predator such as Michael Crist—as a

consequence of his conviction—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? Of course it is.

Yet, remarkably, the majority in its ill-conceived opinion

concludes otherwise and declares unconstitutional sections

322.212(5)(c) and 322.141(3)(a), Florida Statutes (2021).

Undeterred by the long-standing and strong presumption that

duly enacted Florida statutes are constitutional, the majority

races into a dangerously wayward opinion that ends in a

repugnant result with deleterious effect.

First, the majority unjustifiably strips from law enforcement

and the public generally the ability to readily identify through a

government-issued certificate (a driver license) one who is a

convicted sexual predator, thereby threatening the public safety,

even if unintentionally, by heightening the risk sexual predators

pose to Florida’s children and families. Second, some may argue

(wrongly) that the analysis employed by the majority extends

beyond this case and opens the door to others who seek editorial

control over information on a driver license that more fits the

whim of the licensee. This Court should immediately return that

door to its closed and locked position.

The majority’s decision simply strains reason and

understanding. And it is founded upon the softest and loosest of

constitutional soil.

Therefore, I dissent.

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I.

In 2001, Michael Crist was charged in Sumter County,

Florida with three counts of capital sexual battery and two

counts of first-degree lewd or lascivious molestation. More

specifically, Crist was charged with the penile-anal rape of a boy

less than 12 years of age. He was further charged with engaging

in oral sex and other lewd touching with the young boy during a

five-month period.

Ultimately, Crist was allowed to enter a plea agreement by

which he pleaded guilty to lesser included offenses: three counts

of attempted sexual battery upon a person less than 12 years of

age and two counts of second-degree lewd or lascivious

molestation. By his plea, Crist admitted his guilt and

acknowledged that the child victim was “truthful” concerning the

allegations and that, subsequent to the charged conduct, Crist

invited the child-victim to his home “intend[ing] to again engage

in sexual acts with that child.” Crist also acknowledged that

another minor child “who first brought [his] criminal actions to

light concerning the [young male] child victim in the pending case

has been truthful concerning [Crist’s] sexual overtures toward

her.” By the terms of the plea, Crist was designated a sexual

predator and sentenced to 8 years in prison followed by 17 years

of sex-offender probation.

Upon release from prison, Crist began serving the sex-

offender probation portion of his sentence. By operation of section

322.141(3)(a), Florida Statutes, Crist’s Florida driver license was

to bear the marking “SEXUAL PREDATOR.” While Crist was on

probation, a law enforcement officer went to Crist’s residence to

conduct a registration check and verify his current address.

When Crist was asked for his identification, the law enforcement

officer observed Crist “picking” at the license while he delayed

giving it to the officer. Based on the officer’s experience, he

believed Crist was trying to remove a sticker from his license that

concealed the “SEXUAL PREDATOR” marking. When the officer

was able to obtain Crist’s license, he observed a smiley face

18

sticker covering the statutorily required marking. Crist was

arrested.

Crist was charged with violation of section 322.212(5)(c),

Florida Statutes, and attempted tampering with evidence. As a

result of these charges, he also was alleged to have violated his

probation. Crist filed his motion asking the trial court to declare

sections 322.212(5)(c) and 322.141(3)(a) unconstitutional. Crist

argued that the required “SEXUAL PREDATOR” marking on his

driver license compels his speech, in violation of the First

Amendment to the United States Constitution.

The trial court denied the motion. Thereafter, Crist entered

an admission of violation of probation and related plea agreement

to the new charges, reserving the right to appeal the denial of his

motion. Crist was sentenced to 295 months in prison for violation

of his probation (just more than 24.5 years). He also was

sentenced to concurrent terms of five years in prison on each of

his two new crimes. This appeal followed.

II.

Florida statutes are cloaked with a “strong presumption” in

Florida law that they are constitutional. Montgomery v. State, 69

So. 3d 1023, 1026 (Fla. 5th DCA 2011) (citing first DuFresne v.

State, 826 So. 2d 272, 274 (Fla. 2002), and then Adhin v. First

Horizon Home Loans, 44 So. 3d 1245, 1250 (Fla. 5th DCA 2010)).

“It is a fundamental principle of our constitutional jurisprudence

that all doubts as to the validity of a statute are to be resolved in

favor of constitutionality where reasonably possible.” Westerheide

v. State, 767 So. 2d 637, 647 (Fla. 5th DCA 2000), approved, 831

So. 2d 93 (Fla. 2002) (internal quotation marks omitted). This

presumed constitutionality endures until the contrary is shown.

Id. Thus, one who challenges a statute’s constitutionality

shoulders “a heavy burden of establishing its invalidity.”

Montgomery, 69 So. 3d at 1026 (citing Wright v. State, 739 So. 2d

1230, 1231 (Fla. 1st DCA 1999)).

A.

19

The Florida Sexual Predators Act, found in section 775.21,

Florida Statutes, governs those who have been convicted of

qualifying sexual offenses set forth therein. See § 775.21(4)(a),

Fla. Stat. To serve the State of Florida’s “compelling interest in

protecting the public from sexual predators and in protecting

children from predatory sexual activity,” see § 775.21(3)(c), Fla.

Stat., the Act requires that all individuals convicted of qualifying

offenses shall, at the time of sentencing, be designated a “sexual

predator.” See § 775.21(5), Fla. Stat. The convicted sexual

predator also is subjected to, inter alia, registration

requirements, see § 775.21(6), Fla. Stat., and public-notification

procedures. See § 775.21(7), Fla. Stat.

Further, a Florida driver license or identification card issued

to a designated sexual predator “shall have on the front of the

license or identification card . . . the marking ‘SEXUAL

PREDATOR.’” § 322.141(3)(a), Fla. Stat. If the designated sexual

predator fails to display or otherwise alters this required

marking on the driver license issued to him, he commits a third-

degree felony. See § 322.212(5)(c) and (6), Fla. Stat.

B.

Crist argues that the “SEXUAL PREDATOR” marking on

the driver license issued to him by the Florida Department of

Highway Safety and Motor Vehicles is unconstitutional because

it compels his speech in violation of the First Amendment to the

United States Constitution. I disagree.

To determine the constitutionality of sections 322.141(3)(a)

and 322.212(5)(c), we must resolve two issues. First, does the

statutorily required “SEXUAL PREDATOR” marking now placed

upon the Florida driver license issued to Crist compel his speech?

Finally, if so, does such compelled speech violate the First

Amendment to the United States Constitution?

In my view, the answer to the first question is no—the

required marking does not compel Crist’s speech. Further,

assuming arguendo such marking did compel Crist’s speech, the

answer to the second question also is no—the required marking

does not violate the First Amendment.

20

1.

The statutorily required “SEXUAL PREDATOR” marking on

Crist’s driver license does not compel speech by Crist. Rather, it

is the government of the State of Florida that speaks.

Government speech has been described as speech by the

government in furtherance of its purposes or programs. See

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.

200, 232 (2015) (Alito, J., dissenting). And when the government

chooses to speak, it does not trigger First Amendment

safeguards.1 “The Free Speech Clause restricts government

regulation of private speech; it does not regulate government

speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467

(2009) (citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553

(2005) (“[T]he Government’s own speech . . . is exempt from First

Amendment scrutiny.”) (other citations omitted)); see also Walker,

500 U.S. at 207 (“When government speaks, it is not barred by

the Free Speech Clause from determining the content of what it

says.”). Generally, a government entity has the right to “speak for

itself.” Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529

U.S. 217, 229 (2000). When the government chooses to speak, “it

is entitled to say what it wishes.” Rosenberger v. Rector & Visitors

of Univ. of Va., 515 U.S. 819, 833 (1995).2 And when government

does so, “it is, in the end, accountable to the electorate and the

1 The majority suggests that even if it were to determine the

driver license was purely government speech, “it would still be

subject to constitutional analysis under the compelled speech

doctrine.” As this statement makes clear, the majority’s position

in this regard is entirely dependent upon its determination that

the marking compels Crist’s speech. With this, I disagree.

2 As Justice Alito, writing for the Court, further explained in

Pleasant Grove City, “This does not mean that there are no

restraints on government speech. For example, government

speech must comport with the Establishment Clause.” 555 U.S.

at 468; see also Van Orden v. Perry, 545 U.S. 677, 692–98 (2005)

(Thomas, J., concurring) (discussing the original meaning of the

Establishment Clause).

21

political process for its advocacy. If the citizenry objects, newly

elected officials later could espouse some different or contrary

position.” Southworth, 529 U.S. at 235.

While it is true that the government has the right to speak,

it does not have the right to compel Crist to disseminate its

message. Here, however, the State has not spoken through Crist.

Rather, it speaks through its own, duly issued document—a

Florida driver license.

Pertinent here, the First Amendment to the United States

Constitution provides, “Congress shall make no law . . . abridging

the freedom of speech . . . .” Amend. I, U.S. Const. The United

States Supreme Court, in interpreting the First Amendment, has

determined that “the right of freedom of thought protected by the

First Amendment against state action includes both the right to

speak freely and the right to refrain from speaking at all.” Wooley

v. Maynard, 430 U.S. 705, 714 (1977) (citations omitted). “The

right to speak and the right to refrain from speaking are

complementary components of the broader concept of ‘individual

freedom of mind.’” Id. (citation omitted). The Supreme Court has

further concluded that the “compelled speech doctrine applies to

ideological speech and purely factual, non-commercial speech.”

McClendon v. Long, 22 F.4th 1330, 1336 (11th Cir. 2022) (citing

Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 797–98 (1988);

Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755

(2018)).

As urged by Crist, the majority essentially relies primarily

on two cases in support of his position that the challenged

statutes are unconstitutional: Doe 1 v. Marshall, 367 F. Supp. 3d

1310 (M.D. Ala. 2019), and State v. Hill, 341 So. 3d 539 (La.

2020). Those cases conclude that each state’s similar laws

requiring markings on the driver licenses held by those who have

committed sexual crimes impermissibly compelled the offender’s

speech in violation of the First Amendment. In my view, both

cases are devoid of any persuasive force or effect.

Nearly fifty years ago, the United States Supreme Court in

Wooley declared unconstitutional New Hampshire’s punishment

of a citizen for covering the State motto “Live Free or Die” on his

22

license plate affixed to his personal automobile. Wooley, 430 U.S.

at 717. The Court held it was violative of the First Amendment to

“require an individual to participate in the dissemination of an

ideological message by displaying it on his private property in a

manner and for the express purpose that it be observed and read

by the public.” Id. at 713 (emphasis added). To allow the state to

do so would “in effect require[] that appellees use their private

property as a ‘mobile billboard’ for the State’s ideological message

or suffer a penalty[.]” Id. at 715; see also McClendon, 22 F.4th at

1336 (citing Wooley). Such action “invades the sphere of intellect

and spirit which it is the purpose of the First Amendment to our

Constitution to reserve from all official control.” Wooley, 430 U.S.

at 715 (quoting Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943)).

The “SEXUAL PREDATOR” marking on Crist’s license

materially differs from Wooley in two important ways. First, the

marking is not displayed on Crist’s private, personal property.

Second, the required marking is not placed on the driver license

“for the express purpose that it be observed and read by the

public” at large. See Wooley, 430 U.S. at 713 (emphasis added).

a.

Simply stated, much like a U.S. passport, a Florida driver

license remains government property and, when issued by the

State and placed in Crist’s possession, does not constitute Crist’s

personally owned private property. See Doe v. Kerry, No. 16-cv-

0654-PJH, 2016 WL 5339804, at *17 (N.D. Cal. Sept. 23, 2016) (a

U.S. passport “remain[s] government property even when held by

individuals” and may constitutionally bear an identifier notifying

those who view the passport that the holder is a convicted sex

offender). A Florida driver license is “a certificate that, subject to

all other requirements of law, authorizes an individual to drive a

motor vehicle.” § 322.01(17), Fla. Stat. The driver license is

issued only by the Florida Department of Highway Safety and

Motor Vehicles. See § 322.14(1)(a), Fla. Stat. And Florida law

grants to the department the right to require the surrender of the

driver license upon certain occurrences. See, e.g., § 322.059, Fla.

Stat. (surrender of license required for delinquent support

obligation); § 322.22, Fla. Stat. (authorizing cancelation or

23

withholding of issuance or renewal of license and requiring

surrender of canceled license).

The holder of a Florida driver license, such as Crist,

possesses no “editorial control” over what information is

contained on the license. No Floridian can add a statement to an

officially issued license that may express the holder’s personal

view or opinion.3 Indeed, the State of Florida alone determines

what information is displayed on a driver license. Florida law

dictates—in considerable detail—what information is set forth on

the license, including, inter alia: a color photograph or digital

image of the licensee; the name of the State; a unique number

assigned to the licensee; the licensee’s full name, date of birth,

and residential address; a description of the licensee, to include

his sex and height; and the dates of issuance and expiration of

the license. A license is also required to be signed by the licensee

and identify the class of vehicle he may operate. See § 322.14(1),

Fla. Stat.; see also § 322.141, Fla. Stat. The holder of the license

has no prerogative to request or require the removal of this

information beyond that contemplated by Florida law.4

3 To permit the holder of a Florida driver license to add to or

alter its contents based on the whim or preference of the holder

would diminish the license as a means of government-issued

identification.

4 The majority’s novel determination that a government-

issued Florida driver license is a “speech hybrid” containing both

governmental and personal voluntary speech, such as for an

organ donor or lifetime fishing or hunting licensee, misses the

point. Such information is only permitted on a license for those

who qualify for inclusion because the State of Florida directs such

information be placed there. The reason for this requirement

seems clear: the identification of the licensee as an organ donor,

for example, must be able to be officially communicated to proper

authorities when needed or required. While one may voluntarily

choose to be an organ donor or not, and the state does not make

that choice, the inclusion of the information on the license of the

organ donor is not personal because it is provided for by the

Department, not simply the individual.

24

Further, the State of Florida exerts considerable control over

the physical license itself. Specifically, Florida law provides:

Every licensee shall have his or her driver license, which

must be fully legible with no portion of such license

faded, altered, mutilated, or defaced, in his or her

immediate possession at all times when operating a

motor vehicle and shall present or submit the same

upon the demand of a law enforcement officer or an

authorized representative of the department.

§ 322.15(1), Fla. Stat. (emphasis added). As such, when the driver

license was tendered by the State into Crist’s possession, the

license retains its character as a government “certificate,” see

§ 322.01, Fla. Stat., over which the government maintains

ownership and statutory control.

It is that certificate—that license issued by the Florida

Department of Highway Safety and Motor Vehicles—that conveys

the State’s message identifying Crist’s legal status as a “SEXUAL

PREDATOR.” Such legal status is born from the designation

Florida law placed upon him as a result of his conviction for his

admitted and horrendous sexual offenses perpetrated against his

minor child victim. He did not choose the classification, and one

can rightly conclude he would discard the status if allowed.

Nonetheless, Florida law requires Crist be designated a sexual

predator and that the Department identify Crist as a convicted

sexual predator on his state-issued driver license.

As a result, both the substance of the communication—

Crist’s legal status as a sexual predator, which is pertinent to his

legal identity—and the means of communication—the driver

license issued by the State of Florida to Crist that contains all

information required by law—is quintessential government

speech. Far different than the forced straw-like hypotheticals

presented by the majority involving overtly political commentary

(which push to the brink of absurdity), the State’s communication

of Crist’s legal status as a dangerous sexual predator is purely

governmental speech spoken through a purely governmental

medium. And the State is permitted to communicate Crist’s legal

25

status in furtherance of its purpose to protect the community and

children in Florida.

That Crist has possession of the driver license, and exercises

a degree of concurrent physical control over it, does not render

the license “his property.” See Kerry, 2016 WL 5339804, at *17

(“Passports remain government property even when held by

individuals . . . .”). And because the State’s message

communicating Crist’s status as a sexual predator is not

communicated through use of Crist’s private property—as was

the case in Wooley and McClendon—the State has not

impermissibly compelled Crist’s speech.

b.

Additionally, the driver license here is distinguishable from

the license plate in Wooley because the required marking is not

placed on the driver license “for the express purpose that it be

observed and read by the public.” See Wooley, 430 U.S. at 713

(emphasis added). The compelled distribution of the government

speech at issue in Wooley (a license plate attached to one’s

vehicle) and McClendon (a yard sign placed by a local sheriff’s

office at the residences of registered sex offenders warning

passersby not to trick or treat at the home) involved distribution

by displaying the message on one’s private property that would

be observed and read by all passersby. See McClendon, 22 F.4th

1336–38.

Far different than Wooley and McClendon, the “SEXUAL

PREDATOR” marking is not placed on Crist’s driver license as a

“billboard,” see Wooley, 430 U.S. at 715, designed to be a message

communicated to the public at large and consumed by them. By

its very nature, a driver license customarily is held in one’s wallet

(or the like) along with other items needed for business or

personal purposes. Unlike a license plate or sign, it is not

displayed to all who pass by or encounter its holder. Rather, it is

a means of official identification (and certificate of authority to

operate a motor vehicle on public roadways) that is shown when

required or requested. Those who may request to view the license

may be law enforcement or other governmental agents, as well as

private individuals in business settings. Such request is born of

26

situational need. And it is not difficult to envision such need

extending beyond Crist encountering law enforcement officers

and into business settings, including those environments where

children regularly congregate (e.g., playground-type

establishments, cruises, places where adults may volunteer to

work with children, etc.). Thus, the purpose of the marking is to

notify such persons who have reason to view the driver license in

seeking to identify an individual and receive other information

contained on the license (perhaps including his designation as a

sexual predator).

2.

Even if, arguendo, the statutorily required “SEXUAL

PREDATOR” marking constitutes a form of compelled speech by

Crist, as the majority suggests, the statutes requiring the

marking and forbidding its alteration or concealment are

constitutional.

As the Eleventh Circuit has explained, “[w]hen the

government ‘compel[s] speakers to utter or distribute speech

bearing a particular message,’. . . such a policy imposes a content-

based burden on speech and is subject to strict-scrutiny review.”

McClendon, 22 F.4th at 1337–38 (quoting Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 641–42 (1994)) (other citations

omitted). Thus, to be constitutionally permissible, the challenged

speech “must be a narrowly tailored means of serving a

compelling state interest.” Id. at 1338 (citing Pacific Gas & Elec.

v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 19 (1986)). The

SEXUAL PREDATOR marking before us passes constitutional

muster.

The inherently compelling state interest in protecting the

public and minor children from sexual offenses, see § 775.21(3)(c),

Fla. Stat., is self-evident and in need of no commentary. This

interest is universally—and rightly—regarded as sufficiently

compelling for constitutional purposes, including by the courts

relied upon by Crist. See Doe 1, 367 F. Supp. 3d at 1329; Hill, 341

So. 3d at 553; see also McClendon, 22 F.4th at 1338.

27

Additionally, the challenged statutes are sufficiently

narrowly tailored to serve this compelling state interest.5 The

statutorily required marking on Crist’s license does not seek to

communicate to the public at large or to disinterested passersby.

Rather, the marking is viewed only by those who need or desire

to view his license for a given purpose. Those who seek to review

Crist’s driver license—be they law enforcement authorities or

individuals engaged in business or social enterprise—may well

need or want to know of Crist’s status as a sexual predator. The

marking on his license to provide such awareness is narrowly

tailored to accommodate this compelling state interest. Any

humiliation Crist claims he suffers when required to produce his

driver license neither lessens the State’s interest nor renders the

State’s means in this regard insufficiently narrowly tailored.

As a result of his arguments, Crist asks this Court to “at

least change the requirement of the sexual predator designation

on ID cards and driver licenses to those required in the case of

sexual offender.” The majority seemingly puts its seal of approval

on such a change. However, Crist’s argument, and the majority’s

approval thereof, fails for two reasons.

First, the majority’s “one-size-fits-all” approach of the use of

a statute section number as a means of identifying his status as a

sexual predator fails to appreciate the unique and heightened

risks posed by such predators. True, sexual offenders are

themselves serious threats to the public safety. Sexual predators,

however, present an even greater threat to the community given

the nature of their offenses and the targeting of vulnerable

children. Perhaps the requirements of Florida statutes—that a

sexual offender be identified on his driver license by statute

section number, see § 322.141(3)(b), Fla. Stat., while a sexual

predator is to be identified by express wording—were enacted

into Florida law to appreciate and address that heightened risk

5 As noted by the Eleventh Circuit in McClendon, “‘narrowly

tailored’ does not mean ‘perfectly tailored.’” McClendon, 22 F.4th

at 1338 (citing Williams-Yulee v. Fla. Bar, 575 U.S. 433, 454

(2015)). The statutory marking objected to here is constitutional,

and the State of Florida has no burden to further tailor the

marking to meet Crist’s preference.

28

and give notification consistent therewith (along with the

substantial registration and monitoring requirements also

applicable).

Further still, the majority presents no colorable basis for its

conclusion that its recommended statute numbers (replete with

color-coding) pass constitutional muster while the words

“SEXUAL PREDATOR” do not. In its effort to assuage the shame

purportedly felt by Crist,6 the effect of the majority’s

recommendation is to lessen the ability of the public to know of

the threat presented by predators in their presence.

Finally, and more importantly, however, Crist’s request and

the majority’s recommendations—on a most fundamental level—

misunderstand the prerogative and purpose of the judicial branch

of government. This Court simply should refuse to go along, even

in the form of left-handed recommendations.

Courts may not, even in a rare instance when a statute is

declared unconstitutional, rewrite the law. Such is the sole

prerogative of the political branches of government, administered

by individuals duly elected by the People. To even entertain a

contrary notion is violative of the most foundational aspects of

government in our Republic and inconsistent with the text,

structure, and history of our governing constitution. See Art. II, §

3, Fla. Const. (“The powers of the state government shall be

divided into legislative, executive, and judicial branches. No

person belonging to one branch shall exercise any powers

appertaining to either of the other branches unless expressly

provided herein.”); see also generally Arts. I–III, U.S. Const.

III.

As sections 322.215(5)(c) and 322.141, Florida Statutes, are

plainly constitutional and do not violate Crist’s right to speech

6 Public sunlight may well cause Crist a sense of shame for

the repeated and abhorrent acts of abuse he perpetrated on his

victim in the darkness of isolation. So be it. Such a proper feeling

in no way renders the statutorily required marking on his license

unconstitutional.

29

secured by the First Amendment, the trial court correctly denied

his motion. Therefore, I would affirm.

30