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.

Harvey J. Sepler, Hollywood, amicus curiae, in support of

Appellant.

James Uthmeier, Attorney General, Tallahassee, and Richard A.

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

Jeffrey Paul DeSousa, Acting Solicitor General, Nathan A.

Forrester, Chief Deputy Solicitor General, and Christopher J.

Baum, Senior Deputy Solicitor General, Tallahassee, for

Appellee.

August 15, 2025

ON REHEARING EN BANC

PRATT, J.

Florida law requires that Michael Crist’s driver license state

a truth about his criminal history: he is a “SEXUAL PREDATOR.”

§ 322.141(3)(a), Fla. Stat. (2019). Florida law also prohibits Crist

from possessing a driver license “upon which the sexual predator

. . . marking[ ]” is “not displayed” or has “been altered.” Id.

§ 322.212(5)(c). Crist stands convicted of violating this latter

statute, but he urges us to overturn his conviction on the ground

that his marked driver license compels him to speak in violation of

the First Amendment.1 After careful study of relevant historical

practices, the United States Supreme Court’s compelled-speech

jurisprudence, and lower-court decisions applying that

jurisprudence, we reject Crist’s constitutional claim and affirm his

conviction.

I.

Like at least seven other states,2 and like the federal

government does with U.S. passports,3 Florida requires that a

1 More precisely, Crist claims a violation of the Fourteenth

Amendment, which makes the First Amendment’s freedom-of-

speech guarantee applicable against the States. See Stromberg v.

California, 283 U.S. 359, 368 (1931); Gitlow v. New York, 268 U.S.

652, 666 (1925). This opinion will refer to the “First Amendment”

as a shorthand.

2 Kansas, Mississippi, and Oklahoma require descriptive

phrases. Kan. Stat. Ann. § 8-1325a(b) (2006); Miss. Code Ann.

§ 45-35-3(2) (West 2020); Okla. Stat. tit. 47, § 6-111.E.1. (2025).

Alabama, Delaware, Tennessee, and West Virginia require codes,

at minimum. Ala. Code § 15-20A-18(c) (2017); Del. Code. Ann. tit.

21, § 2718(e) (West 2025); Tenn. Code Ann. § 55-50-353(a) (West

2022); W. Va. Code Ann. § 17B-2-3(b) (West 2006). At one time,

Louisiana would have made our list; it enforced its descriptive-

phrase statute until its supreme court rendered an adverse

decision. See State v. Hill, 341 So. 3d 539 (La. 2020).

3 The federal identifier is even more descriptive than Florida’s.

“The identifier is a statement printed inside the passport book

2

special marking appear on the driver licenses and identification

cards that the State issues to persons with a history of certain sex

offenses. For sexual offenders, licenses and cards must bear the

marking, “943.0435, F.S.”—a reference to Florida’s sexual-offender

registration statute. See §§ 322.141(3)(b), 943.0435, Fla. Stat. For

sexual predators, the licenses and cards must bear the marking,

“SEXUAL PREDATOR.” See id. § 322.141(3)(a). Sexual predators

are sexual offenders whose sex crimes involve repeat offenses,

violence, or crimes against minors. Id. § 775.21(3)(a). They are

subject to enhanced registration, public notification, and address

verification. Id. § 775.21(6)–(8), (10).

The facts of this case are undisputed. By virtue of his criminal

history, Crist is a sexual predator. After his 2008 release from

prison, Crist resided in Sumter County and began serving

seventeen years of supervised release. The Florida Department of

Highway Safety and Motor Vehicles issued him a driver license

bearing the required sexual predator marking.

During a sexual predator registration check in 2019, a law

enforcement officer asked Crist to present his identification. Crist

removed his driver license from his wallet, hesitated, and appeared

to pick at it with his fingers. Based on his prior experience, the

officer suspected that Crist was removing a sticker covering his

sexual predator designation. The officer demanded that he

immediately stop picking at the license and surrender it. When

Crist continued to hesitate, the officer grasped the license and

confirmed his suspicions: it bore a smiley-face emoji sticker

covering the designation.

The State charged Crist with possessing a driver license upon

which the required sexual predator marking was not displayed or

which reads: ‘The bearer was convicted of a sex offense against a

minor, and is a covered sex offender pursuant to 22 USC

212b(c)(1).’” Passports and International Megan’s Law, U.S.

Department of State, Bureau of Consular Affairs,

https://travel.state.gov/content/travel/en/passports/legal-matters/

passports-and-international-megans-law.html (Apr. 8, 2025); see

22 U.S.C. § 212b.

3

had been altered, as well as with evidence-tampering (for

attempting to remove the sticker). Crist moved the trial court to

declare unconstitutional as applied to his prosecution

sections 322.141(3)(a) and 322.212(5)(c)—the marked-license

requirement for sexual predators. Relying on a recent Alabama

federal court decision and a recent Louisiana Supreme Court

decision, Crist argued that the marked-license requirement

compels him to speak in violation of the First Amendment.4 The

trial court denied the motion, and Crist pleaded no contest,

reserving his right to appeal the court’s denial of his motion. Crist

appealed, a divided panel of our court reversed, and on our own

initiative, we ordered rehearing en banc.

II.

Before turning to the merits, we examine the proper scope of

this appeal. In its brief to the panel, the State contested

jurisdiction, arguing that the order that Crist reserved for appeal

is not dispositive. See Fla. R. App. P. 9.140(b)(2)(A)(i). Before the

en banc court, however, the State does not repeat this argument.

We conclude that we have jurisdiction. The dispositiveness

requirement that Rule 9.140 codifies—found in section 924.051(4),

and repeated in section 924.06(3), Florida Statutes (2022)—“is not

a limitation on the subject matter jurisdiction of the appellate

courts, but instead is a codification of the existing law regarding

the issues that can be addressed on appeal following a plea of

guilty.” Leonard v. State, 760 So. 2d 114, 118 (Fla. 2000); see

Ruilova v. State, 125 So. 3d 991, 995 (Fla. 2d DCA 2013) (“[A]fter

Leonard it is clear that the appellate court has ‘jurisdiction,’ i.e.,

power to examine the case as a whole, even when an order of

suppression is not necessarily dispositive.”); accord Schaefer v.

State, 343 So. 3d 1216, 1217 (Fla. 5th DCA 2022) (following

Leonard and affirming, rather than dismissing for lack of

jurisdiction, where the defendant did not reserve a dispositive

ruling). Indeed, were dispositiveness jurisdictional, then parties’

stipulations would not be binding. But see Churchill v. State, 219

4 Crist also asserted a claim under the Florida Constitution,

but he presses only his federal constitutional claim on appeal.

4

So. 3d 14, 17–18 (Fla. 2017) (holding that appellate courts must

accept a stipulation of dispositiveness).

We also conclude that the order denying Crist’s motion to

suppress is dispositive and, therefore, within the proper scope of

Crist’s appeal. “An issue is legally dispositive” when “it is clear

that regardless of whether the appellate court affirms or reverses

the trial court’s decision, there will be no trial.” Jones v. State, 806

So. 2d 590, 592 (Fla. 5th DCA 2002). No matter how we rule on the

constitutional question, there will be no trial on the altered-license

count. See Churchill, 219 So. 3d at 16 (identifying “rulings on

‘[m]otions testing . . . the constitutionality of a controlling statute’”

as quintessential dispositive orders (quoting Brown v. State, 376

So. 2d 382, 385 (Fla. 1979))). And because Crist entered an open

plea, there likewise will be no trial on the evidence-tampering

count. See Pass v. State, 922 So. 2d 279, 282 (Fla. 2d DCA 2006)

(refusing to set aside open plea on remand, and distinguishing

Jordan v. State, 801 So. 2d 1032, 1036 (Fla. 5th DCA 2001), which

concerned a negotiated plea); Harper v. State, 889 So. 2d 899, 900

(Fla. 2d DCA 2004) (reversal after open plea will be remanded only

for resentencing, whereas reversal after negotiated plea will be

remanded either for resentencing or withdrawal from plea

agreement and trial). Therefore, the order on appeal is dispositive

of both of Crist’s charges.5

5 Because we conclude that there will be no trial on either

count, we need not and do not decide whether Rule 9.140 requires

an order to be dispositive of all counts. Some decisions have

suggested the order need not be dispositive of all counts, but we

leave the issue for a future case. See Hicks v. State, 852 So. 2d 954,

961 (Fla. 5th DCA 2003) (reversing the denial of a motion to

suppress that was dispositive of only one charge, and remanding

for further proceedings on all charges); accord Brown v. State, 224

So. 3d 806, 808, 811 (Fla. 2d DCA 2017) (relying on Hicks to decide

an appeal where the motion to suppress was dispositive of only one

count); Nelson v. State, 268 So. 3d 837, 839 (Fla. 2d DCA 2019)

(relying on Brown).

5

III.

Now on to the merits. Although Crist challenges only the

sexual predator marking on his driver license, his claim turns on

the proposition that government-issued identification cards

compel their holders to speak their contents. As best we can tell,

that claim is quite novel, with only a handful of courts having

confronted it. Those courts asked the same two questions: whether

factual, personal information on government-issued identification

is government or private speech, and whether it compels the

identification-holder’s speech. They agreed on the answer to the

first question but divided over the answer to the second.

Federal district courts in Alabama and Louisiana, as well as

the Louisiana Supreme Court, have accepted compelled-speech

claims much like Crist’s. See Doe 1 v. Marshall, 367 F. Supp. 3d

1310, 1324–27 (M.D. Ala. 2019) (holding that Alabama’s marked-

identification requirement for sex offenders is government speech

but nonetheless unconstitutionally compels private speech); State

v. Hill, 341 So. 3d 539, 552, 555 (La. 2020) (holding likewise as to

Louisiana’s marked-identification requirement); see also Nelson v.

Landry, 714 F. Supp. 3d 790, 808–09 (M.D. La. 2024) (relying on

Hill to hold likewise as to Louisiana’s marked driver license

requirement).

The U.S. Court of Appeals for the Eleventh Circuit, on the

other hand, rejected a materially similar compelled-speech claim

against sex designations on driver licenses. See Corbitt v. Sec’y of

the Ala. L. Enf’t Ag., 115 F.4th 1335, 1352–53 (11th Cir. 2024)

(holding that any speech on a driver license is government speech

and that male and female designations do not compel license-

holders to communicate the State’s message about their sex). In

addition, a California federal district court rejected a compelled-

speech claim much like Crist’s when it upheld the identifier that

federal law requires to appear on sex offenders’ U.S. passports. See

Doe v. Kerry, No. 16-CV-0654-PJH, 2016 WL 5339804, at *18 (N.D.

Cal. Sept. 23, 2016) (concluding that the plaintiffs failed to state a

claim because the sex-offender identifier is government speech and

does not compel the passport-holder’s speech).

6

In short, Crist raises an emergent issue that surfaced less

than a decade ago, and on which the few courts to reach it have

split. Therefore, we must take a side in a new and unfolding

debate. Because we face a matter of first impression within our

district with no directly on-point decision from either of our

reviewing courts, we undertake our own analysis below. And

because Crist asks us to opine on a matter of federal constitutional

interpretation, we conduct that analysis de novo. Henry v. State,

175 So. 3d 675, 676–77 (Fla. 2015).

IV.

First things first: methodology. Before the panel, the parties

built their arguments solely on contemporary First Amendment

doctrine. This doctrine-driven approach to a novel constitutional

issue skipped over a critical first step that the U.S. Supreme Court

often employs: surveying our Nation’s history and tradition. See

Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022) (looking

first to historical practices, and then to precedent, to resolve a

novel First Amendment claim, noting that “[w]hat history

suggests, we believe our contemporary doctrine confirms”).

As the Court unanimously has explained in analyzing a novel

First Amendment claim, “[w]hen faced with a dispute about the

Constitution’s meaning or application, ‘[l]ong settled and

established practice is a consideration of great weight.’” Id. at 474

(quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)). This is

because “‘a regular course of practice’ can illuminate or ‘liquidate’

our founding document’s ‘terms & phrases.’” Id. (quoting Letter

from James Madison to Spencer Roane (Sept. 2, 1819), in 8

Writings of James Madison 450 (Gaillard Hunt ed., 1908)). These

observations by a unanimous Court are not new; they boast a

lineage extending all the way back to Chief Justice Marshall and

the Framers. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

401 (1819) (noting Congress’s power to establish a national bank

“can scarcely be considered as an open question, entirely

unprejudiced by the former proceedings of the nation respecting

it”; Congress’s prior acts had yielded “[a]n exposition of the

constitution” that “ought not to be lightly disregarded”; and post-

ratification practices left “a considerable impression”); accord The

Federalist No. 37, at 229 (James Madison) (Clinton Rossiter ed.,

7

1961) (predicting the meaning of “obscure and equivocal”

provisions will “be liquidated and ascertained by a series of

particular discussions and adjudications”).

“For more than 200 years,” the Supreme Court “has relied on

history when construing vague constitutional text in all manner of

constitutional disputes,” including First Amendment ones. United

States v. Rahimi, 602 U.S. 680, 717 (2024) (Kavanaugh, J.,

concurring); id. at 728–29 (compiling over thirty cases, including

Wilson). Indeed, the text-and-history method is “the ordinary

approach to constitutional interpretation.” Cf. id. at 732. Even in

precedent-saturated fields, such as the freedom of speech, “the

[constitutional] text, as well as pre-ratification and post-

ratification history,” exert “a gravitational pull on the Court’s

interpretation of precedent.” Id. at 730; see also id. at 732 n.7

(noting the Court’s frequent reliance on history in free-speech

cases). Most relevant for our purposes as an inferior court, that

gravitational pull provides guardrails “[w]hen determining how

broadly or narrowly to read a precedent.” Id. at 730. It also helps

us avoid “a policy-based” interpretive approach, id. at 731, that is

unmoored from the Constitution’s original meaning. And in any

event, a focus on text, history, and tradition helps us take care not

“to read judicial opinions like statutes,” Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 426 (2024) (Gorsuch, J., concurring), or

to allow litigation over modern doctrinal frameworks like tiers of

scrutiny to “take on a life of its own and do more to obscure than

to clarify the ultimate constitutional questions,” TikTok Inc. v.

Garland, 145 S. Ct. 57, 74 (2025) (Gorsuch, J., concurring).

For these reasons, after ordering rehearing en banc, we asked

the parties to brief historical practices that might shed light on

Crist’s claim. The parties nonetheless again built their arguments

only on contemporary doctrine. We are “entitled to decide” this

appeal based on the parties’ arguments. N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 25 n.6 (2022). However, we believe a

more thorough treatment is warranted; we will “conduct a more

robust historical inquiry” even though it’s “not [our] burden” to do

so. United States v. Ayala, 711 F. Supp. 3d 1333, 1338 (M.D. Fla.

2024). Following Wilson’s methodology, to analyze the novel

compelled-speech question that Crist raises, we survey probative

historical practices before turning to modern judicial decisions.

8

V.

The States did not begin issuing driver licenses until the 20th

Century—long after ratification of the First and Fourteenth

Amendments. For example, Florida began issuing its licenses in

1939. See Ch. 19551, § 26, Laws of Fla. (1939). Even so, several

older analogues may provide at least some evidence on whether

the foundational premise of Crist’s novel claim—that government-

issued identification compels the holder’s speech—squares with

the original meaning of the Freedom of Speech Clause. We discuss

them below.

Passports and proto-passports. “[E]arly American passports

were consistently issued by the executive authorities of the

colonies.” Leonard S. Goodman, Passports in Perspective, 45 Tex.

L. Rev. 221, 240 (1966) (“Goodman”). For instance, seventeenth-

century Virginia settlers had to procure “passes from the Governor

to leave the colony,” and by 1756, “[a] travel pass was required by

British authority for travel between” colonies. Dep’t of State, The

United States Passport: Past, Present, Future 7, 9 (1976) (“The

United States Passport”). During the early republic, both federal

authorities and the States issued “many variations” of passports

and passport-like documents; Congress did not assert an exclusive

control over passports until 1856. Id. at 171; see also id. at 9

(“Although the issuance of passports has always been under the

jurisdiction of the Department of State, conflicting passport

issuances by local and state authorities took place concurrently

until 1856.”); id. at 31, 207 (describing the 1856 Act).

These early passports and proto-passports at times contained

highly personal details and descriptions—both flattering and

unflattering—of the person to whom they were issued. An example

on the flattering end of the spectrum is the 1805 passport that

Connecticut Governor Jonathan Trumbull issued to Professor

Benjamin Silliman. The document described Silliman as being “of

very respectable parentage,” having “had a liberal Education at

our College of Yale,” and having planned “a voyage to Europe” for

a “laudable purpose.” Id. at 20. In at least one other state,

passports were required to describe the holder’s personal character

and reputation. “As early as 1779,” New Jersey required residents

9

travelling outside their county of residence to first obtain a pass

“certifying that the Bearer . . . is . . . a Person of good Repute” and

“generally esteemed a Friend to the present Government.”

Goodman at 242 (quoting An Act to prevent Persons from passing

through this State without proper Passports, N.J. Sess. Laws,

June 10, 1779).

Some passports issued under early federal authority were less

effusive, with blunt descriptions of the bearer’s features. For

example, a 1796 passport issued by a U.S. foreign minister

plenipotentiary to James Grubb described him as having a “small

mouth, large nose, large forehead,” and “long chin.” The United

States Passport at 40. A similar 1795 passport issued to Samuel

Potts described him as “bald” and having a “large Nose, high

Forehead, . . . and long Face.” Gaillard Hunt, The American

Passport: Its History and a Digest of Laws, Rulings, and

Regulations Governing Its Issuance by the Department of State 82

(1898) (“Hunt”) (describing the Potts passport as “[t]he first

recorded passport issued abroad”). In 1835, “the first special

passport to a free person of color” was issued to John Browne; it

described his complexion as “yellow.” Id. at 15. An 1831 special

passport described its bearer as “deprived of the faculties of

hearing and speaking.” Id. at 18. By 1837, the Secretary of State

required passport applications to disclose detailed descriptions of

personal physical features. The United States Passport at 141.

By the late nineteenth century, the State Department had

made clear that the holders of passports were prohibited from

altering them. Hunt at 94. This prohibition reflected the principle

that “[t]he form of the passport as an official open letter from the

secretary of state to other state officials meant that a citizen

carried the passport as a messenger, not as the owner of the

document.” Craig Robertson, The Passport in America: The History

of a Document 23 (2010) (“Robertson”). “The State Department

believed a passport’s authority rested on the issuing government

maintaining a ‘paramount right over it,’” and “the bearer of a

passport could not mark the document in any way.” Id. at 23–25.

Seamen’s protection certificates. In 1796, Congress enacted

legislation in response to the growing problem of impressment of

American sailors on British ships. See An Act for the Relief and

10

Protection of American Seamen, ch. 36, § 1, 1 Stat. 477 (1796). The

statute required federal customs collectors to keep registries of

U.S. citizens serving as seamen on American vessels. Id. § 4. “[A]t

the request of any seaman” who proved his U.S. citizenship, a

customs collector had to issue a certificate that attested to the

seaman’s citizenship and had to list him in the registry. Id. The

statute further directed that the certificates “describ[e] the said

seaman as particularly as may be,” id., and that the records

periodically be transmitted to the Secretary of State, id. § 7.

Records indicate that seamen’s protection certificates kept to

Congress’s command and were quite descriptive—often,

uncomfortably so. An online database of the lists kept by seven

customs districts includes nearly 31,000 entries dated between

1796 and 1871, and it discloses numerous colorful descriptions.6

Among the most notable examples from our perusal: “pit on his

forehead”; “Scar between his eyes”; “Lost his left Eye”; “lame in left

leg”; “scar on right instep & cross eyed”; “much pitted with

smallpox”; and “bald & a small scar on top his head.” Longer

noteworthy descriptions include: “scar on the middle of forehead-

little finger of left hand crooked”; “the second toe of his right foot

has been split scar on left knee right arm crooked”; “has a mole on

each breast, scar on left leg-two crooked fingers”; “has two small

hair moles on left side his face & a large scar on calf of left leg from

a scald”; “Scar on left wrist, one on the left shoulder has lost the

left eye & the right one disfigured”; “large scar on right hand warts

on right eye”; and “bit by dog on his right arm-Scar on his head.”

6 See Registers of Seamen’s Protection Certificates, Mystic

Seaport Museum, https://research.mysticseaport.org/databases/

protection/ (last visited Aug. 11, 2025). “The original records are in

the possession of the National Archives at Boston, in Waltham,

Massachusetts.” Id. “In general, they only have the original

registers, not the protection certificates themselves (with rare

exceptions).” Id. Readers can access the descriptions that we cite

by searching keywords in the chart’s “Other” field. We also have

compiled an appendix that contains copies of the original register

pages that we quote in this opinion. We publish them with

permission of the National Archives and Records Administration.

See Appendix to Opinion.

11

These frank and detailed personal descriptions share a

common trait: they all speak of their subjects in the third person.

Thus, they clearly reflect the observations and messages of

government officials—the federal customs collectors—rather than

the speech of the seamen themselves.

Vital records. The practice of compiling vital records “traces

its origins to our early history.” Gore v. Lee, 107 F.4th 548, 551 (6th

Cir. 2024). “In 1639, the Massachusetts Bay Colony required civil

registration of births, marriages, and deaths.” Id. at 551–52. “Two

centuries later, Massachusetts again set the pace when it required

town clerks in 1842 to collect information about newborns,

including their sex, and forward it to the State.” Id. at 552. “The

other States adopted similar laws in the nineteenth and twentieth

centuries.” Id. As the U.S. Court of Appeals for the Sixth Circuit

concluded when rejecting a claimed due-process right to remove or

alter accurate information on birth certificates, the history of state

vital records demonstrates that “the State has considerable

discretion in what they should say: what they should record, what

language they should use, and when if at all they should be

amended.” Id. at 565.

***

We hesitate to draw any firm conclusions from our limited

historical survey, but we think it suggests at least a few general

propositions. First, throughout our Nation’s history—including the

founding era and the early republic—governments have issued

documents and kept records that pertain to individuals. Second,

those documents and records communicated government

messages, and the government determined their content. Third, at

least certain kinds of early American documents included personal

details that the holder may have found embarrassing, may not

have endorsed, or may have wished not to publicly advertise. And

finally, we are aware of no national tradition recognizing a right to

alter or redact these sorts of personal details, even as to

documents—like passports and seamen’s protection certificates—

that were carried on one’s person and presented to others.

12

Taken together, these propositions “pose[ ] a problem for”

Crist’s compelled-speech claim. Wilson, 595 U.S. at 475. In short,

we have located “no evidence suggesting prior generations

thought” a person’s “speech might be ‘abridg[ed]’ by” the inclusion

of accurate (but embarrassing) personal information on a

government-issued identification document. Id. at 477 (quoting

U.S. Const. amend. I).

VI.

“What history suggests,” the Supreme Court’s “contemporary

doctrine confirms.” Id. In particular, the Court’s decisions counsel

that “any speech on [a] . . . driver’s license . . . is government

speech,” Corbitt, 115 F.4th at 1352, and the sexual predator

marking on Crist’s license—an accurate, albeit embarrassing, item

of personal information—does not compel him to speak or

otherwise convey the fact that it acknowledges, see id. at 1353; see

also Doe, 2016 WL 5339804, at *16–18.

A.

The Supreme Court’s First Amendment decisions repeatedly

have drawn a distinction between government speech and private

speech. As to the former, subject to certain narrow constraints

(addressed in the next section of this opinion), “[a] government

entity has the right to speak for itself,” “is entitled to say what it

wishes,” and may “select the views that it wants to express.”

Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009)

(quotation marks and citations omitted). “That freedom in part

reflects the fact that it is the democratic electoral process that first

and foremost provides a check on government speech.” Walker v.

Tex. Div., Sons of Confederate Vets., Inc., 576 U.S. 200, 207 (2015).

It also reflects the reality that “government would not work” if it

could not control the content of its messages. Id.

In his supplemental brief, Crist concedes that his driver

license marking is government speech. That concession is well-

taken. To identify government speech, the Court weighs three

factors: “(1) whether the medium at issue has historically been

used to communicate messages from the government; (2) whether

the public reasonably interprets the government to be the speaker;

13

and (3) whether the government maintains editorial control over

the speech.” Pulphus v. Ayers, 249 F. Supp. 3d 238, 247 (D.D.C.

2017) (citing Walker, 576 U.S. at 209–14). In Walker, the Court

weighed these factors and held that Texas’s specialty license plate

program conveyed government speech. 576 U.S. at 219.

If specialty license plates convey government speech

notwithstanding the licensee’s choice over which plate to display,

see id. at 203, 217, then driver licenses surely do. First, Florida

historically has used driver licenses to communicate a government

message—chiefly, its identification of those permitted to drive in

the state. See Department History, Fla. Highway Safety & Motor

Vehicles, https://www.flhsmv.gov/about/department-history/ (last

visited Aug. 11, 2025) (explaining that Florida first required

licenses in 1939 and imposed testing in 1941); § 322.01(18), Fla.

Stat. (stating that a driver license is a “certificate that . . .

authorizes an individual to drive a motor vehicle”). Second, the

public recognizes that Florida issues driver licenses, and it

therefore associates those licenses with the State. See Walker, 576

U.S. at 212 (“Texas license plates are, essentially, government IDs

. . . . [P]ersons who observe designs on IDs routinely—and

reasonably—interpret them as conveying some message on the

[issuer’s] behalf.” (quotation marks omitted)). Third, Florida

retains physical control over licenses and editorial control over

their content, and it affords licensees less choice over content than

did the specialty plate program at issue in Walker. See, e.g.,

§ 322.14, Fla. Stat. (mandating what the Department of Highway

Safety and Motor Vehicles must include on licenses); id.

§ 322.15(1) (requiring that driver licenses not be “faded, altered,

mutilated, or defaced”); id. § 322.16 (authorizing the State to

impose license restrictions); id. § 322.059 (requiring surrender of a

driver license); id. § 322.22 (authorizing the department to cancel

or withhold renewal of a license); State v. Etienne, 930 A.2d 726,

735 n.12 (Conn. App. Ct. 2007) (noting the back of a Florida driver

license contains the statement, “[t]he state of Florida retains all

property rights herein”)7; cf. Walker, 576 U.S. at 203, 217

7 Throughout this opinion, when we use possessive phrases

like “Crist’s driver license” or “his license,” we speak colloquially;

we do not imply that Crist has any property rights in the license.

14

(describing the level of choice that Texas’s specialty plate program

affords). Even as to the designations that drivers may elect, the

State provides the exclusive—and short—menu of options. See

§ 322.14(1)(c)–(e), Fla. Stat. (deaf and hard of hearing, veteran,

and certain other designations). Accordingly, a Florida driver

license’s content is pure government speech.

We don’t have to guess how the Walker framework applies to

government-issued identification cards like driver licenses; Walker

explicitly addresses the matter. As the Supreme Court noted,

“issuers of ID ‘typically do not permit’ the placement on their IDs

of ‘message[s] with which they do not wish to be associated,’” and,

therefore, “‘persons who observe’ designs on IDs ‘routinely—and

reasonably—interpret them as conveying some message on the

[issuer’s] behalf.’” 576 U.S. at 212 (quoting Summum, 555 U.S. at

471). Other courts have taken this teaching at face value. As a

California federal district court has held, “[t]o the extent that a

[marked] passport”—a form of federal identification—

“communicates information, it does so on behalf of the issuing

government, not the passport holder.” Doe, 2016 WL 5339804, at

*18. And as the U.S. Court of Appeals for the Eleventh Circuit has

held, “any speech on an Alabama driver’s license, including the sex

designation, is government speech,” and “the fact that [drivers]

may take part in providing some physical identification

information for inclusion on their licenses does not extinguish the

governmental nature of State-issued identification.” Corbitt, 115

F.4th at 1352. So, too, anyone who examines a Florida driver

license would understand that the government controls the

content and therefore would not attribute its information to the

individual tendering the license.

Perhaps most telling, we know of no split in authority on this

issue; all three decisions that accepted compelled-speech claims

like Crist’s nonetheless acknowledged that marked driver licenses

convey government speech. See Doe 1, 367 F. Supp. 3d at 1325

(“The message here is indeed government speech. After all, the

State issues the ID cards and controls what is printed on them.”);

Hill, 341 So. 3d at 552 (holding that a marked identification card

compels speech “even though an identification card is government

speech”); Nelson, 714 F. Supp. 3d at 809 (noting that Louisiana’s

marked driver license requirement “has qualities of both

15

compelled and government speech”). We have no trouble

concluding the same as to Florida’s marked license.

B.

Even where government speech is involved, “a government’s

ability to express itself is” not “without restriction.” Walker, 576

U.S. at 208. One such restriction derives from “the Free Speech

Clause itself”: the government may not “compel private persons to

convey the government’s speech.” Id. Here, we encounter the

question that has generated the decisional split on claims like

Crist’s: does a government identification card compel the holder to

speak its contents? The Eleventh Circuit and a California federal

district court answer, “no.” See Corbitt, 115 F.4th at 1353; Doe,

2016 WL 5339804, at *18. Two other federal district courts and the

Louisiana Supreme Court answer, “yes.” See Nelson, 714 F. Supp.

3d at 808–09; Doe 1, 367 F. Supp. 3d at 1324–25; Hill, 341 So. 3d

at 554–55. We think the Eleventh Circuit and the California

federal court have the better reading of the Supreme Court’s

leading compelled-speech decisions.8

In West Virginia State Board of Education v. Barnette, 319

U.S. 624 (1943), the Supreme Court acknowledged that the

Constitution protects a right not to speak. There, the Court held

that the First Amendment prohibits government from compelling

8 We find it unnecessary to analyze the Court’s compelled

subsidy, access, association, hosting, and publication cases, as

Crist raises a straightforward compelled-speech claim, rather than

these other kinds of claims. See, e.g., Moody v. NetChoice, LLC, 603

U.S. 707 (2024) (claim of compelled hosting of third-party speech);

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585

U.S. 878 (2018) (compelled subsidy); Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47 (2006) (claim of compelled

access); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005)

(claim of compelled subsidy); Boy Scouts of Am. v. Dale, 530 U.S.

640 (2000) (compelled association); Hurley v. Irish-Am. Gay,

Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (compelled

association); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

(1974) (compelled publication).

16

its citizens to salute the flag and recite the pledge of allegiance.

Barnette, 319 U.S. at 642. As the Court famously explained, “[i]f

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.

Several decades later, the Court accepted another compelled-

speech claim in Wooley v. Maynard, 430 U.S. 705 (1977). The

Maynard plaintiffs sought an injunction against a statute

requiring them to display the New Hampshire state motto, “Live

Free or Die,” on their vehicle license plates. 430 U.S. at 709. As the

Court explained, their case presented “the question of whether the

State may constitutionally 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. In holding that the

statute burdened the plaintiffs’ First Amendment right to refrain

from speaking, the Court noted that “New Hampshire’s statute in

effect requires that [they] use their private property as a ‘mobile

billboard’ for the State’s ideological message or suffer a penalty.”

Id. at 715. Put another way, “[a]s a condition to driving an

automobile—a virtual necessity for most Americans—the

Maynards must display ‘Live Free or Die’ to hundreds of people

each day.” Id. The Court contrasted the “mobile billboard” nature

of the license plate motto with state seals and mottos on

documents, the purpose of which “is not to advertise the message

it bears but simply to authenticate the document by showing the

authority of its origin.” Id. at 715 n.11. It likewise drew a contrast

with the national motto on coins and currency, which are “passed

from hand to hand” and “generally carried in a purse or pocket.”

Id. at 717 n.15. The Court went on to hold that the statute

triggered and failed heightened scrutiny. Id. at 716–17.

More recently, the Court sustained another compelled-speech

claim in National Institute of Family & Life Advocates v. Becerra,

585 U.S. 755 (2018) (“NIFLA”). There, the State of California

required licensed, pro-life pregnancy resource centers to advertise

the availability of state-subsidized abortions through notices

“posted in the waiting room, printed and distributed to all clients,

or provided digitally at check-in.” NIFLA, 585 U.S. at 763. It also

17

required unlicensed centers to “conspicuously” post “at the

entrance . . . and in at least one waiting area”—as well as in all

advertising materials—a notice advising that they have no medical

license and no licensed medical provider. Id. at 764. The Court held

that both notice requirements likely compel speech in violation of

the First Amendment. Id. at 779. As to the first notice

requirement, the Court observed that “licensed clinics must

provide” to their clients “a government-drafted script about the

availability of state-sponsored services, as well as contact

information for how to obtain them.” Id. at 766. “One of those

services is abortion—the very practice that petitioners are devoted

to opposing.” Id. Thus, “[b]y requiring petitioners to inform women

how they can obtain state-subsidized abortions—at the same time

petitioners try to dissuade women from choosing that option—the

licensed notice plainly alters the content of petitioners’ speech.” Id.

(quotation marks omitted). The Court likewise held that the

second, unlicensed notice requirement “imposes a government-

scripted, speaker-based disclosure requirement.” Id. at 777.

Finally, just two years ago, the Court accepted a compelled-

speech claim in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).

There, the Court held that the Colorado Civil Rights Commission

could not force a Christian-owned business and its owner to convey

on their wedding websites messages that conflict with their

religious beliefs. In so holding, the Court noted that the websites

at issue “qualify as ‘pure speech’” because each will be an “‘original,

customized’ creation” made by the plaintiffs for the purpose of

“communicat[ing] ideas,” including the celebration and promotion

of what the plaintiffs “understand[ ] to be a true marriage.” 303

Creative, 600 U.S. at 587 (quotation marks omitted); see also id. at

593–94 (noting that the websites would contain “‘customized and

tailored’ speech for each couple” and “will be expressive in nature,

using text, graphics, and in some cases videos to celebrate and

promote the couple’s wedding and unique love story”). And the

Court repeatedly noted the fact that the parties had stipulated to

the expressive nature of the websites. See id. at 587, 588, 593–94,

597–98, 599. In short, Colorado sought to “forc[e] an individual to

create speech on weighty issues with which she disagrees.” Id. at

599. The Court held that this effort to compel speech ran afoul of

the First Amendment and decades of Supreme Court precedent

construing it. Id. at 601–03.

18

Crist’s driver license exhibits none of the characteristics that

the Court found material in Barnette, Maynard, NIFLA, and 303

Creative. Unlike the compulsory pledge, the license does not

compel Crist to “confess by word or act [his] faith” in a government-

prescribed “orthodoxy.” Barnette, 319 U.S. at 642. Unlike a state

motto on a license plate, Crist’s driver license does not require him

to use it as a “mobile billboard” to display the State’s message to

“hundreds of people each day.” Maynard, 430 U.S. at 715. Nor does

it require him to use it “as a stationary billboard” for the State’s

message, either. McClendon v. Long, 22 F.4th 1330, 1337 (11th Cir.

2022). Unlike a sex offender yard sign, for instance, a marked

driver license is not used to display or advertise a message to the

public. Cf. id. (holding that, under the First Amendment, law

enforcement cannot compel a sex offender to post a public warning

sign in his front yard). Unlike California’s pregnancy center

notices, a sexual predator marking on a driver license is not a

“government-drafted script” conspicuously posted in a public area

or included in advertising materials, and it does not alter the

content of Crist’s speech or otherwise dictate what he says about

the topic it concerns. NIFLA, 585 U.S. at 766. And unlike a custom

wedding website, a driver license is not an “original, customized

creation” made by the holder for the purpose of communicating the

holder’s message. 303 Creative, 600 U.S. at 587. In sum, whatever

the test for compelled speech, Crist’s claim does not resemble in

any material way the claims at issue in Barnette, Maynard,

NIFLA, and 303 Creative.

Because of these obvious and material distinctions, we need

not distill a definitive test for compelled speech to decide this case.

However, for the sake of a comprehensive analysis, we note that

courts often—but not always—require a compelled-speech litigant

to show that the challenged government practice creates a

perception that he endorses the government’s message. Compare,

e.g., Cressman v. Thompson, 798 F.3d 938, 949 (10th Cir. 2015)

(applying Johanns and requiring appearance of endorsement),

with McClendon, 22 F.4th at 1337 (applying Maynard and

rejecting an endorsement requirement). This appeal does not

require us to articulate a comprehensive framework for when an

appearance of endorsement is required. On this point, the

Eleventh Circuit’s precedent is instructive. The Eleventh Circuit

19

declined to apply the endorsement test in McClendon. See 22 F.4th

at 1337. Nonetheless, it later held that driver license designations

do not compel speech, and it did so without applying an

endorsement requirement. See Corbitt, 115 F.4th at 1353. We

agree with the Eleventh Circuit’s analysis in Corbitt.

Of course, Crist’s claim necessarily falters under the stronger

endorsement test. As the U.S. District Court for the Northern

District of California put it, “[a] mark on a passport identifying the

holder as a registered sex offender is neither an ‘opinion’ which is

being attributed to the passport holder, nor a misleading

statement,” and “the identifier is not a public communication and

will not even be displayed to the public.” Doe, 2016 WL 5339804,

at *18. As such, the identifier will not be “attributed to—or deemed

to be endorsed by—the private party” on whose identification it

appears. Id. Instead, the identifier will be understood as the

government’s message and the government’s message alone. Id.

And, just as with birth certificates, “[t]he mere fact that a person

presents a document to a third-party does not mean that the

person endorses or is appearing to endorse everything stated in the

document.” Gore v. Lee, No. 3:19-CV-0328, 2023 WL 4141665, at

*35 (M.D. Tenn. June 22, 2023), aff’d on other grounds, 107 F.4th

548 (6th Cir. 2024). “[T]o the contrary, experience shows that

people often present documents under circumstance that would

disabuse anyone of the notion that the person is endorsing all (or

perhaps even any) of the contents of the document.” Id. So, too,

with Crist’s driver license.

Crist’s claim faces yet another obstacle that precludes a

conclusion of compelled speech, no matter the test we might use:

“‘[T]he act of presenting identification,’ or ‘handing government

documents . . . to someone else, has never been considered a form

of expressive conduct . . . .’” Fowler v. Stitt, 676 F. Supp. 3d 1094,

1105 (N.D. Okla. 2023) (quoting Int. of C.G., 976 N.W.2d 318, 341,

345 (Wis. 2022)), aff’d in part, rev’d in part on other grounds, 104

F.4th 770 (10th Cir. 2024). In this respect, driver licenses are more

like currency and birth certificates than license plates, public

notices, yard signs, or websites. A person does not “in any

meaningful way affirm[ ] the [national] motto by using currency.”

Mayle v. United States, 891 F.3d 680, 686 (7th Cir. 2018). As the

Supreme Court noted in Maynard, “[c]urrency is generally carried

20

in a purse or pocket and need not be displayed to the public,” and

“[t]he bearer of currency is thus not required to publicly advertise

the national motto.” 430 U.S. at 717 n.15; accord Mayle, 891 F.3d

at 686 (“[M]ost people do not brandish currency in public—they

keep it in a wallet or otherwise out of sight until the moment of

exchange.”). Similarly, the holders of driver licenses do not parade

them about but instead keep them out of sight unless and until a

need to present them arises. Therefore, they do not advertise any

government messages that the licenses contain.

For all the above reasons, Crist’s marked driver license does

not compel his speech. 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.” Doe, 2016

WL 5339804, at *18. 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.

C.

Our understanding of the Supreme Court’s compelled-speech

doctrine solidifies when we consider lower-court decisions that

have applied that jurisprudence in analogous contexts. In several

ways, accepting Crist’s claim would call into question vital

government functions and place us out of step with the great

weight of judicial authority in adjacent areas. See United States v.

Sindel, 53 F.3d 874, 878 (8th Cir. 1995) (rejecting a compelled-

speech claim against an IRS summons, and noting that “[t]here is

no right to refrain from speaking when ‘essential operations of

government may require it for the preservation of an orderly

society[ ]—as in the case of compulsion to give evidence in court’”

(quoting Barnette, 319 U.S. at 645 (Murphy, J., concurring))).

To be sure, as we already have seen, the Eleventh Circuit and

Northern District of California have rejected claims like Crist’s.

See Corbitt, 115 F.4th at 1352–53 (holding that sex designations

on driver licenses do not compel speech); Doe, 2016 WL 5339804,

at *18 (rejecting compelled-speech claim against the federal sex-

21

offender identifier for U.S. passports). And as one of those courts

recognized, any other result would carry no clear limiting

principle. See Doe, 2016 WL 5339804, at *18 (noting that if the

First Amendment confers a right not to have one’s identification

display a truth that the holder finds inconvenient or embarrassing,

the identification will “cease to function as reliable government-

issued identification”); cf. Crist v. State, No. 5D2022-2966, 50 Fla.

L. Weekly D177 (Fla. 5th DCA Jan. 10, 2025), vacated on reh’g en

banc (noting that license-holders may not “like certain facts about

themselves to be known, such as . . . 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”).

Moving beyond those two decisions, that lack of limiting

principle becomes more obvious, as Crist’s claim runs up against a

host of analogous federal and state decisions as well. For example,

lower courts have rejected compelled-speech claims that sought to

remove or alter accurate information on vital records like birth

certificates, or that sought to allow sex offenders to change their

legal names. See Int. of C.G., 976 N.W.2d 318 (Wis. 2022) (rejecting

compelled-speech claim against statute prohibiting sex offenders

from changing their legal names); Fowler, 676 F. Supp. 3d at 1107–

08 (rejecting compelled-speech claim against sex designation on

state birth certificates); Gore, 2023 WL 4141665, at *34–36 (same).

We don’t see any principled reason to treat Crist’s claim

differently. The holders of birth certificates and other similar

records occasionally must present them to others, just as the

holders of driver licenses must. And no less than driver licenses,

these records contain truthful information about the persons

whom they concern. Accepting Crist’s claim, therefore, would

stand in tension with federal and state decisions rejecting

compelled-speech claims against—and upholding states’ control

over—the content of government-issued vital records.

Crist’s claim also is hard to square with decisions that have

rejected compelled-speech claims against the national motto on

United States currency. See Mayle, 891 F.3d at 686; New Doe Child

#1 v. Cong. of the U.S., 891 F.3d 578, 593–94 (6th Cir. 2018). In

these cases, litigants unsuccessfully argued that they are

compelled to speak “In God We Trust” when they present currency

to others during commercial transactions. In rejecting these

22

claims, the courts noted that they are flatly inconsistent with the

Supreme Court’s dictum in Maynard. See 430 U.S. at 717 n.15

(“Currency is generally carried in a purse or pocket and need not

be displayed to the public. The bearer of currency is thus not

required to publicly advertise the national motto.”); see also Mayle,

891 F.3d at 686 (relying on Maynard’s dictum); New Doe Child #1,

891 F.3d at 593–94 (same). We find these decisions instructive; it’s

not obvious to us why presenting a driver license would compel the

holder’s speech any more than presenting currency would.

Finally, Crist’s claim stands in tension with a host of federal

and state decisions that have rejected compelled-speech claims

against sexual offender registration and reporting requirements.

Unlike a driver license, which the holder passively presents when

circumstances require, sex-offender registries require offenders

affirmatively to report their criminal histories and residential

addresses, often for publication. Many offenders have claimed that

these requirements unconstitutionally compel their speech; courts

repeatedly have rejected that claim. See, e.g., United States v.

Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014) (holding that the

registration requirement of the federal Sex Offender Registration

and Notification Act (“SORNA”) does not unconstitutionally

compel speech); Martin v. Hayes, No. 2:24-CV-3-FL-KS, 2025 WL

634833, at *6 (E.D.N.C. Jan. 17, 2025) (holding same, noting that

“[c]ourts have found that sex offender registration requirements

are not compelled speech,” and compiling cases); United States v.

Doby, No. 18-CR-40057-HLT, 2019 WL 5825064, at *3–5 (D. Kan.

Nov. 7, 2019) (holding same); United States v. Fox, 286 F. Supp. 3d

1219, 1222–24 (D. Kan. 2018) (holding same); see also People v.

Ruiz, No. F074673, 2017 WL 4682707, at *1–2 (Cal. Ct. App. Oct.

19, 2017) (rejecting compelled-speech claim against California’s

sex-offender registration requirement); State v. Ontiberos, 527

P.3d 948 (Kan. Ct. App. 2023) (Memorandum) (noting an

appellant’s failure to “identify any state or federal court authority

which has invalidated an offender registration law on First

Amendment grounds”); State v. Masterson, 515 P.3d 753 (Kan. Ct.

App. 2022) (Memorandum) (rejecting compelled-speech claim

against Kansas’s sex-offender registration requirement); Davis v.

Thompson, No. 19-3051-SAC, 2019 WL 6327420, at *3 (D. Kan.

Nov. 26, 2019) (same); Does v. Whitmer, 751 F. Supp. 3d 761, 821–

26 (E.D. Mich. 2024) (rejecting compelled-speech claim against

23

Michigan’s sex-offender reporting requirements); Prater v.

Linderman, No. 1:18-cv-992, 2019 WL 6711561, at *9 (W.D. Mich.

Dec. 10, 2019) (“A public sex offender registry does not violate a

sex offender’s First Amendment rights.”); Medina v. Cuomo, No.

7:15-CV-01283 (GTS/TWD), 2015 WL 13744627, at *10 (N.D.N.Y.

Nov. 9, 2015) (rejecting compelled-speech claim against New

York’s sex-offender registration and reporting requirements);

Grant-Davis v. Wilson, No. 2:19-cv-0392-DCN-TER, 2021 WL

4596614, at *4 (D.S.C. July 15, 2021) (rejecting compelled-speech

claim against South Carolina’s sex-offender registration and

reporting requirements); cf. Willman v. Att’y Gen. of the U.S., 972

F.3d 819, 825 (6th Cir. 2020) (rejecting First Amendment privacy

challenge to SORNA’s registration requirement and reiterating

that “‘[t]he Constitution . . . does not encompass a general right to

nondisclosure of private information’” (quoting J.P. v. DeSanti, 653

F.2d 1080, 1090 (6th Cir. 1981))).

On all these closely related questions in similar contexts,

accepting Crist’s claim would risk putting us on a collision course

with the great weight of existing judicial authority. See, e.g.,

Corbitt, 115 F.4th at 1352–53; Doe, 2016 WL 5339804, at *18; Int.

of C.G., 976 N.W.2d at 345–46; Fowler, 676 F. Supp. 3d at 1107–

08; Gore, 2023 WL 4141665, at *34–36; Mayle, 891 F.3d at 686;

New Doe Child #1, 891 F.3d at 593–94; Arnold, 740 F.3d at 1035;

Martin, 2025 WL 634833, at *6; Doby, 2019 WL 5825064, at *3–5;

Fox, 286 F. Supp. 3d at 1222–24; Ruiz, 2017 WL 4682707, at *1–2;

Ontiberos, 527 P.3d 948; Masterson, 515 P.3d 753; Davis, 2019 WL

6327420, at *3; Whitmer, 751 F. Supp. 3d at 821–26; Prater, 2019

WL 6711561, at *9; Medina, 2015 WL 13744627, at *10; Grant-

Davis, 2021 WL 4596614, at *4. If we harbored any doubts about

how to apply the Supreme Court’s compelled-speech jurisprudence

to this appeal, the accumulated wisdom of these state and federal

decisions—which carefully grappled with that jurisprudence—

would soundly resolve them in the State’s favor.

D.

One might respond that accepting Crist’s claim under the

rubric of strict scrutiny would allow us to avoid this morass by

empowering us to draw the fine distinctions needed to differentiate

these analogous cases. We doubt that simply declaring “compelling

24

interest” and “least restrictive means” whenever a future litigant’s

claim seems too unworkable—or whenever the challenged law

seems too important—will reflect any satisfactory principle. See

Rahimi, 602 U.S. at 731 (Kavanaugh, J., concurring) (describing

the labels for various forms of means-end scrutiny, and observing

that, “[w]hatever the label of the day, that balancing approach is

policy by another name” because “[i]t requires judges to weigh the

benefits against the burdens of a law and to uphold the law as

constitutional if, in the judge’s view, the law is sufficiently

reasonable or important”). But even putting aside the difficulty of

finding a principled path to avoid its likely implications for

analogous cases, on its own terms, accepting Crist’s claim would

thrust us into a policymaking arena of its own: the fraught

business of micromanaging the content of the State’s identification

cards. In fact, this is exactly what Crist urges us to do in his

supplemental en banc brief. In his concluding prayer for relief, he

asks us to hold—and we quote—that Florida’s marked-license

statutes “are unconstitutional and should be revised to allow for

either a code, statute numbers or a number/letter combination.”

Lest readers dismiss our warning as hyperbole or Crist’s

prayer as a pipe dream, they would do well to consider the lived

experience of courts that have accepted compelled-speech claims

in this context. Recall that the Louisiana Supreme Court and an

Alabama federal court accepted claims like Crist’s. Hill, 341 So. 3d

at 555; Doe 1, 367 F. Supp. 3d at 1324–27. Both courts’ strict-

scrutiny reasoning split some hairs. The Louisiana Supreme Court

recognized that “the state certainly has a compelling interest in

protecting the public and enabling law enforcement to identify a

person as a sex offender.” Hill, 341 So. 3d at 553. But it held that

“Louisiana has not adopted the least restrictive means of doing so,”

because the State had employed a capitalized descriptive phrase

in “big orange letters,” whereas “[a] symbol, code, or a letter

designation” would have sufficed. Id. at 551, 553; accord Nelson,

714 F. Supp. 3d at 809 (repeating Hill’s analysis).

The Alabama federal court similarly acknowledged that “[t]he

State has a compelling interest in enabling law enforcement to

identify a person as a sex offender.” Doe 1, 367 F. Supp. 3d at 1326.

However, the court likewise faulted the State for a lack of narrow

tailoring: “By using ‘CRIMINAL SEX OFFENDER’ instead of a

25

single letter, the State goes beyond what is necessary to achieve

its asserted interest.” Id. And indeed, after the Alabama

Legislature responded to Doe 1 by enacting a revised marked

license that employed a code rather than a descriptive phrase, the

same federal court—the same U.S. district judge, in fact—upheld

it under the rubric it had announced in Doe 1. See McGuire v.

Marshall, 741 F. Supp. 3d 1112, 1200–01 (M.D. Ala. 2024). As the

court saw it, “[u]nlike, ‘CRIMINAL SEX OFFENDER’ in large red

font, the CV606 indicator is coded and in small black font.” Id. at

1200. While the court earlier had suggested a “single letter” was

all the Constitution allowed, Doe 1, 367 F. Supp. 3d at 1326, it

nonetheless permitted two letters and three numbers—albeit “in

small black font”—when the matter returned to its docket.

McGuire, 741 F. Supp. 3d at 1200.

If ever there were an example where “litigation over [strict

scrutiny] can sometimes take on a life of its own and do more to

obscure than to clarify the ultimate constitutional questions,”

TikTok Inc., 145 S. Ct. at 74 (Gorsuch, J., concurring)—or where

“means-end scrutiny” becomes “policymaking,” Rahimi, 602 U.S.

at 731, 734 (Kavanaugh, J., concurring)—the Louisiana and

Alabama experiences would be it. We find implausible the notion

that the federal Constitution draws lines based on whether one’s

driver license identifies his criminal history by phrase, code, or

single letter, or on the font size or color of the text. What is the

maximum allowable font size, and can the font color be something

other than black so long as it isn’t red or orange? When does

capitalization cross the line? What code is perceptible enough to

law enforcement but obscure enough for the general public? And

what if the code becomes widespread public knowledge in the

future? Must the State offer a new code every five or ten years to

stay ahead of the curve? For that matter, why isn’t alerting the

select members of the public with whom a sexual predator closely

interacts also a compelling governmental interest? For all the

reasons set forth in this opinion, we do not think that the First

Amendment to the United States Constitution dictates any

answers here. It leaves these quintessential policy questions not to

the courts, but rather to the People’s elected representatives and

the democratic process.

26

VII.

Finally, we offer a few words in response to the dissent. We

believe there is room for legitimate debate over the merits of the

First Amendment claim that we decide today. After all, courts have

divided over whether government-issued identification can compel

speech. The dissenting opinion strays out-of-bounds, however, in

its critique of the fullness of our First Amendment analysis and its

assertion that our decision exceeds the scope of Crist’s appeal.

To begin, the dissenting opinion jousts a straw man. It asserts

that we hold government speech is not subject to compelled-speech

analysis. If that were so, one might wonder why we devote nine

pages to a thorough review of the Supreme Court’s compelled-

speech jurisprudence and a score of lower-court precedents that

apply it. We certainly didn’t bury the lede. As we acknowledge at

the outset of our expansive compelled-speech discussion, “[e]ven

where government speech is involved, ‘a government’s ability to

express itself is’ not ‘without restriction,’” and “[o]ne such

restriction derives from ‘the Free Speech Clause itself’: the

government may not ‘compel private persons to convey the

government’s speech.’” Supra at 15–16 (quoting Walker, 576 U.S.

at 208). The dissent can disagree with our conclusion that Crist’s

driver license does not compel his speech, but it’s a patent

misreading to suggest our analysis ends at government speech.

The dissenting opinion compounds its misapprehension of our

opinion with a misapprehension of our judicial role. It is a basic

tenet of our state appellate system that the appellant has the

burden to demonstrate error, see Lynn v. City of Ft. Lauderdale, 81

So. 2d 511, 513 (Fla. 1955), and the appellee has no countervailing

burden, see MacNeill v. O’Neal, 238 So. 2d 614, 615 (Fla. 1970). As

a well-established corollary to that principle, the appellant has a

preservation-and-presentation requirement, but the appellee does

not. See Freeman v. State, 373 So. 3d 1255, 1257 n.2 (Fla. 1st DCA

2023) (“[A]n appellee need not present to the appellate court the

grounds for affirming the judgment of the trial court.”). Indeed, a

Florida appellate court may properly affirm a judgment even

where the appellee fails to file an answer brief or wrongly confesses

error. See id. (“[T]he appellate court may affirm even when the

appellee does not serve an answer brief.”); Powell v. State, 223 So.

27

3d 412, 413 n.1 (Fla. 5th DCA 2017) (“A confession of error . . . is

not binding upon an appellate court, and it is the practice of

Florida appellate courts not to accept erroneous concessions by the

state.” (quoting Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA

2002))); Sims v. State, 260 So. 3d 509, 513 (Fla. 1st DCA 2018)

(“[W]e are not required to accept the State’s confession, and before

we reverse any criminal judgment, we must be certain the law

requires reversal.”). Simply stated, shortcuts and omissions in

appellate briefs do not relieve us of our obligation to get the law

right. Otherwise, an appellant’s initial brief and an appellee’s

omissions or concessions could combine to re-write the law.

To be sure, in normal adversarial proceedings like this one, it

generally is the appellant who must present the claims on appeal.

See Williams v. State, No. 2024-2334, 2025 WL 2092230, at *2 n.5

(Fla. 5th DCA July 25, 2025) (“We are well aware that, at least in

Florida, the party presentation principle applies to an appellant,

but not necessarily to an appellee.”); cf. id. at *5 n.8 (noting “rare

and limited exceptions to the adversarial nature of our system that

require a court to take a more engaged role,” and citing as an

example Doe v. Uthmeier, 407 So. 3d 1281 (Fla. 5th DCA 2025));

see also Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en

banc).9 Our opinion honors that party-presentation principle.

9 Our dissenting colleagues’ proof-text of Rosier particularly

puzzles us. In Rosier, the en banc First District rejected the

dissent’s proposal to reverse a conviction on grounds not raised by

the appellant. Compare 276 So. 3d at 406 (“We . . . hold that Rosier

waived any argument on the adequacy of the competency hearing

when he failed to raise the issue in the initial brief.”), and id. (“For

an appellant to raise an issue properly on appeal, he must raise it

in the initial brief. Otherwise, issues not raised in the initial brief

are considered waived or abandoned.”), with id. at 425 (Makar, J.,

dissenting) (advocating reversal and faulting the majority for its

“unwillingness to look beyond the initial brief”). It should go

without saying that affirming a conviction by rejecting the claim

that the appellant raises (as we do here) is a far cry from reversing

his conviction on a ground he never raised (as the Rosier dissent

unsuccessfully advocated).

28

Here, Crist has claimed that the sexual predator marking on his

license compels his speech in violation of the First Amendment.

We have resolved that claim and only that claim, and we have

explained the appropriate legal framework for arriving at the

answer. As the dissenting opinion would have it, we must not only

resolve Crist’s claim, but we must cram our answer into the

cramped analytical framework that he posed to the panel and the

State initially chose to brief—i.e., whether the marking meets

strict scrutiny’s narrow-tailoring test. That framing skips the

government-speech analysis conducted even by the federal and

state decisions on which the dissenting opinion relies. It also

wrongly assumes that the marking compels Crist’s speech. And it

elides the historical inquiry, instead advancing a theory that

wrongly would have us micromanage the method the State uses to

mark sexual predators’ driver licenses.10

For the same reason, the dissent’s repeated invocations of

United States v. Sineneng–Smith, 590 U.S. 371 (2020), are likewise

unavailing. There, the Ninth Circuit reversed a criminal conviction

based on a constitutional claim that the appellant “herself never

raised earlier”—a court-initiated claim that the statute of

conviction was unconstitutionally overbroad. Id. at 374. Indeed,

the appellant “had presented a contrary theory of the case in the

District Court.” Id. at 380. It was this “takeover of the appeal,” id.

at 379, that prompted the Supreme Court’s vacatur of the decision.

Yet again, it should go without saying that what we do here—

affirm a conviction by rejecting the precise claim that the appellant

has preserved and presented—bears no resemblance to reversing a

conviction on an unraised claim.

10 None of our analysis should surprise. In our unanimous

supplemental briefing order without any registered dissent, the en

banc court directed the parties to address the two questions that

Crist’s claim necessarily raises under the correct legal framework:

whether the sexual predator marking is government speech, and

whether the marking compels Crist’s speech. Quoting Wilson, we

encouraged them to brief historical practices that might shed light

on those two questions. The order also told the parties to address

Corbitt and asked them to address cases dealing with compelled-

speech claims in related contexts like vital records and U.S.

passports, citing several examples. To the extent the dissenting

29

While we confine our adjudication to the claim that Crist has

presented below and on appeal, we rightly refuse to outsource our

judicial role in doing so. It’s our responsibility to explain the law

that governs the claim the appellant has presented to us, and we

decline the dissent’s demand to delegate our responsibility to the

parties. Cf. Hicks v. State, 277 So. 3d 153, 156 n.3 (Fla. 1st DCA

2019) (“Nor can we accept the dissent’s view that we are acting

unfairly by ‘sua sponte rais[ing] new issues.’ . . . It is the

appellant’s burden to show we must reverse, and he cannot meet

that burden without overcoming all bases for affirmance.”

(citations omitted)).

***

For the foregoing reasons, we reject Crist’s as-applied First

Amendment challenge to sections 322.141(3)(a) and 322.212(5)(c),

and we affirm his conviction.

AFFIRMED.

JAY, C.J., and EISNAUGLE, BOATWRIGHT, KILBANE, and MACIVER,

JJ., concur.

EISNAUGLE, J., concurs with opinion in which PRATT, J., concurs.

KILBANE, J., concurs with opinion in which EDWARDS, J., concurs.

SOUD, J., concurs in result with opinion.

HARRIS, J., concurs in result only without opinion.

MAKAR, J., concurs in part and dissents in part with opinion in

which WALLIS, J., concurs.

LAMBERT, J., recused.

opinion contends that the parties have not had a full and fair

opportunity to address the analysis that we perform in this

opinion, our unanimous briefing order shows otherwise.

30

_____________________________

Not final until disposition of any timely and

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

9.331.

_____________________________

31

Appendix to Opinion

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Case No. 5D2022-2966

LT Case No. 2019-CF-001352

EISNAUGLE, J., concurring with opinion.

I join the majority opinion and agree that the “SEXUAL

PREDATOR” designation does not violate Crist’s First

Amendment rights. I write to emphasize the relative weakness of

post-ratification history and to explain that the post-ratification

historical evidence currently before us is insufficient by itself to

draw any final conclusions about Crist’s claim.1

When we interpret the constitution “the text controls.” N.Y.

State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 36 (2022). That

said, the United States Supreme Court has made clear that a

“regular course of practice” can “liquidate & settle the meaning of”

disputed or indeterminate “terms & phrases.” Chiafalo v.

Washington, 591 U.S. 578, 593 (2020) (quoting Letter from James

Madison to Spencer Roane (Sept. 2, 1819), in 8 The Writings of

James Madison 450 (Gaillard Hunt ed. 1908)).

But “we must . . . guard against giving postenactment history

more weight than it can rightly bear.” Bruen, 597 U.S. at 35. To

be sure, “‘liquidating’ indeterminacies in written laws is far

removed from expanding or altering them.” Id. at 36 (quoting

Gamble v. United States, 587 U.S. 678, 721 (2019) (Thomas, J.,

concurring)). Thus, “post-ratification adoption or acceptance of

laws that are inconsistent with the original meaning of the

constitutional text obviously cannot overcome or alter that text.”

Id. (quoting Heller v. District of Columbia, 670 F.3d 1244, 1274,

n.6 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)).

While post-ratification history often has a role to play—the

role is limited. Indeed, a court’s consideration of post-ratification

history is “secondary,” and at least where other evidence is

1 I join the majority opinion in full because, as I read it, the

analysis is consistent with the limitations on post-ratification

history.

32

available, is used merely as confirmation. Id. at 37. For instance,

in District of Columbia v. Heller, 554 U.S. 570, 584 (2008), the

Supreme Court turned to post-ratification history “only after

surveying . . . a wealth of authority for its reading—including the

text of the Second Amendment and state constitutions.” Gamble,

587 U.S. at 702 (analyzing Heller).

In this case, we might be missing the strongest pieces of the

puzzle. Given the lack of briefing, and the limits on our own

research, we cannot be certain we have the full picture of historical

evidence, and importantly, we do not have the benefit of any

substantial pre-ratification history to help frame the post-

ratification discussion in section V.2 Without knowing whether—

and to what extent—any substantial pre-ratification history

exists, the most we can fairly conclude is that the historic evidence

currently before us does not support Crist’s claim.

PRATT, J., concurs.

2 I recognize that the date we look to for ratification has not

been decided with finality. The Supreme Court has “generally

assumed that the scope of the protection applicable to the Federal

Government and States is pegged to the public understanding of

the right when the Bill of Rights was adopted in 1791.” Bruen, 597

U.S. at 37. In Bruen, although the Court recognized an “ongoing

scholarly debate on whether courts should primarily rely on the

prevailing understanding of an individual right when the

Fourteenth Amendment was ratified in 1868 when defining its

scope (as well as the scope of the right against the Federal

Government),” id., it did not decide the issue. For purposes of this

opinion, I follow the Supreme Court’s lead and assume the scope

of the Free Speech Clause “is pegged to the public understanding

of the right when the Bill of Rights was adopted in 1791.” Id.

33

Case No. 5D2022-2966

LT Case No. 2019-CF-001352

KILBANE, J., concurring.

I agree with the majority that the “SEXUAL PREDATOR”

driver license designation does not violate Crist’s free speech

rights. I write separately to explain the designation contains

only government speech critical to Florida’s essential government

operations, and thus Crist cannot set forth a First Amendment

claim.

In assessing whether the designation is government speech,

we “conduct a holistic inquiry designed to determine whether the

government intends to speak for itself or to regulate private

expression.” See Shurtleff v. City of Boston, 596 U.S. 243, 252

(2022); see also id. at 262 (Alito, J., concurring) (noting the “real

question in government-speech cases” is “whether the

government is speaking instead of regulating private

expression”).

For more than eighty-five years, the State of Florida has

issued driver licenses as part of its essential governmental

operations.1 See Department History, Florida Highway Safety

1 At first, the issuance of driver licenses in Florida was

governed by city ordinances. See, e.g., State v. Dillon, 89 So. 558,

559 (Fla. 1921) (“[T]he city of Miami has the right to require the

drivers of all automobiles for hire using the public streets of the

city, to obtain a license from the city, and in the interest of public

safety, it may inquire into and decide upon the qualification and

fitness of persons to operate auto cars.”). In 1939, however, the

Florida Legislature created the Department of Public Safety and

delegated its authority over state licensing. See Shadler v. State,

761 So. 2d 279, 283 n.3 (Fla. 2000); see also State ex rel. Nelson v.

Quigg, 196 So. 417, 417 (Fla. 1940) (“Chapter 19551 of the Laws

of Florida, Acts of 1939, prohibits any person from driving an

automobile on the highways of the State unless he has a license

to do so.”). In 1969, the Department of Public Safety and the

Department of Motor Vehicles merged to form the newly created

Department of Highway Safety and Motor Vehicles

34

and Motor Vehicles, https://www.flhsmv.gov/about/department-

history/ (last visited July 29, 2025); see also Shadler v. State, 761

So. 2d 279, 283 n.3 (Fla. 2000); § 322.263(1), (3), Fla. Stat. (2019)

(codifying legislature’s purpose to “[p]rovide maximum safety for

all persons who travel or otherwise use the public highways of

the state” and “[d]iscourage repetition of criminal action by

individuals against the peace and dignity of the state”). In 2007,

Florida began placing a designated marking on licenses of

convicted sexual predators.2 See § 322.141(3)(a), Fla. Stat.

(2007). It is this designation that Crist asserts he is compelled to

convey in violation of the Free Speech Clause of the First

Amendment.

Since their inception, Florida state driver licenses have been

exclusively issued by a government agency, used to communicate

essential information in the interest of public safety, and strictly

regulated by the State.3 See Department History, supra; see

(“Department”), which was delegated authority over driver

license administration and enforcement. See Department History,

Florida Highway Safety and Motor Vehicles,

https://www.flhsmv.gov/about/departmenthistory/ (last visited

July 29, 2025); Shadler, 761 So. 2d at 283 n.3. The Department

continues to issue licenses for the State of Florida today. See §

322.02(2), Fla. Stat. (2019).

2 Initially, Florida adopted a driver license designation for

sexual predators that merely referenced The Florida Sexual

Predators Act as follows: “775.21, F.S.” See § 322.141(3)(a), Fla.

Stat. (2007). Seven years later, the designation was changed to

the current marking: “SEXUAL PREDATOR.” See § 322.141,

Fla. Stat. (2014).

3 Despite being placed in a licensee’s possession, the State

maintains stringent control over the license. See, e.g.,

§ 322.15(1), Fla. Stat. (2019) (“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.”). Given the State’s broad authority to issue,

35

generally ch. 322. Even where a license contains an individual’s

self-reported information4 or an optional designation from

government-selected choices, the speech displayed on the license

is ultimately compiled and controlled by the State. Cf. Little v.

Llano County, 138 F.4th 834, 865 (5th Cir. 2025) (“Deciding on

the third-party speech that will be included in or excluded from a

compilation—and then organizing and presenting the included

items—is expressive activity of its own.” (quoting Moody v.

NetChoice, LLC, 603 U.S. 707, 731 (2024))); id. at 852 (“[T]he

Supreme Court has held that the speaker is the one who selects,

compiles, and presents.” (citing Hurley v. Irish-Am. Gay, Lesbian

& Bisexual Grp. of Boston, 515 U.S. 557, 570 (1995))); cf. id. at

865 (applying the Shurtleff factors to find library’s curated

collection constituted government speech).

Taking a holistic view, the information shown on a Florida

driver license is, in its entirety, spoken by the State.5 Thus, the

regulate, seize, suspend, and revoke driver licenses, it follows

that the physical license is government speech expressed on

government property. See, e.g., id. §§ 322.059 (authorizing law

enforcement to seize driver licenses where an individual fails to

return it upon suspension), .22 (authorizing state agency to

cancel or refuse to issue or renew a license in some cases;

requiring licensee to surrender the license); cf. Doe v. Kerry, No.

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

2016) (“Passports remain government property even when held

by individuals, and must be surrendered to the U.S. government

upon demand.”).

4 In applying for a driver license, an individual must

provide certain information and swear or affirm the statements

are truthful. See § 322.08(1), Fla. Stat.

5 This is consistent with the unanimous holding of all courts

that have undertaken this issue other than the original panel

majority in this case. See Corbitt v. Sec’y of the Ala. Law Enf’t

Ag., 115 F.4th 1335, 1352 (11th Cir. 2024) (“[A]ny speech on an

Alabama driver’s license . . . is government speech.”); State v.

Hill, 341 So. 3d 539, 552 (La. 2020) (recognizing “an identification

card is government speech”); Nelson v. Landry, 714 F. Supp. 3d

790, 804 (M.D. La. 2024) (same); Doe 1 v. Marshall, 367 F. Supp.

36

sexual predator designation portion of the license—which is

based on a status imposed only after adjudication by our

adversarial system—is certainly government speech,6 and not

itself subject to the Free Speech Clause.7 See Walker v. Texas

Div., Sons of Confederate Vets., Inc., 576 U.S. 200, 212 (2015)

(“Consequently, ‘persons who observe’ designs on IDs ‘routinely—

and reasonably—interpret them as conveying some message on

the [issuer’s] behalf.’” (alteration in original) (quoting Pleasant

Grove City v. Summum, 555 U.S. 460, 471 (2009))); id. at 215

(“Because the State is speaking on its own behalf, the First

Amendment strictures that attend the various types of

government-established forums do not apply.”); Summum, 555

U.S. at 467 (“[T]he Government’s own speech . . . is exempt from

First Amendment scrutiny.” (alteration in original) (quoting

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005))).

The clear answer to the government speech issue lays the

foundation for the compelled speech question here. Even pure

government speech must be reviewed to determine whether the

means of conveyance unlawfully compels private speech. See

Shurtleff, 596 U.S. at 269 (“[G]overnment speech in the literal

sense is not exempt from First Amendment attack if it uses a

means that restricts private expression in a way that ‘abridges’

3d 1310, 1325 (M.D. Ala. 2019) (“The message here is indeed

government speech. After all, the State issues the ID cards and

controls what is printed on them.”); cf. Kerry, 2016 WL 5339804,

at *16 (finding U.S. passports are “unquestionably government

speech”). But see Crist v. State, No. 5D2022-2966, 50 Fla. L.

Weekly D177 (Fla. 5th DCA Jan. 10, 2025), vacated on reh’g en

banc.

6 That this mandatorily imposed designation constitutes

government speech is even more clear than in cases where a

plaintiff sought to alter a license designation. See, e.g., Corbitt,

115 F.4th at 1352.

7 Government speech is, of course, subject to the

Establishment Clause of the First Amendment. See Pleasant

Grove City v. Summum, 555 U.S. 460, 468 (2009). This is not

further addressed as it is not relevant here.

37

the freedom of speech, as is the case with compelled speech.”).

But Crist must first establish his interests implicate First

Amendment protections. See Wooley v. Maynard, 430 U.S. 705,

716 (1977); see also Planned Parenthood Minn., N.D., S.D. v.

Rounds, 530 F.3d 724, 733 (8th Cir. 2008) (“[T]o address a claim

that a state action violates the right not to speak, a court first

determines whether the action implicates First Amendment

protections. If it does, the court must determine whether the

action is narrowly tailored to serve a compelling state interest.”

(emphasis added) (internal citations omitted) (citing Wooley, 430

U.S. at 716)).

Long before Wooley, Justice Murphy summarized the

complementary rights of speech and silence as follows: “The right

of freedom of thought . . . as guaranteed by the Constitution

against State action includes both the right to speak freely and

the right to refrain from speaking at all, except in so far as

essential operations of government may require it for the

preservation of an orderly society[.]” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring); see

also United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014)

(“[T]here is no right to refrain from speaking when ‘essential

operations of government require it for the preservation of an

orderly society[.]’” (quoting United States v. Sindel, 53 F.3d 874,

878 (8th Cir. 1995))). This exception has been applied to sex

offender registration and notification requirements. See, e.g.,

Arnold, 740 F.3d at 1035; see also Martin v. Hayes, No. 2:24-CV-

3-FL-KS, 2025 WL 634833, at *6 (E.D.N.C. Jan. 17, 2025)

(“Courts have found that sex offender registration requirements

are not compelled speech because there is no right to refrain from

speaking when the government is conducting essential operations

to preserve an orderly society.” (emphasis added)), report and

recommendation adopted, No. 2:24-CV-3-FL, 2025 WL 785216

(E.D.N.C. Mar. 12, 2025).

Florida requires the placement of the designation at issue in

conducting its “essential government operations” regarding

public safety, as part of its overarching sexual predator8

8 Given the severity of the crimes committed in acquiring

sexual predator status, and the lack of cases addressing it, cases

38

registration and notification requirements. When an individual

with sexual predator status is living in the community—i.e., not

incarcerated—he or she must obtain, if qualified, either an

identification card or driver license with the sexual predator

designation within 48 hours of registration. See § 775.21(6)(f),

Fla. Stat.; see also id. § 322.141(3). This is due to “[t]he high level

of threat that a sexual predator presents to the public safety, and

the long-term effects suffered by victims of sex offenses[.]” Id. §

775.21(3)(b)(3); see also id. § 775.21(3)(d) (“The state 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.” (emphasis added)). The

determination of the need for and placement of this designation,

to notify the community and keep it safe from predatory

behavior, is not only within the sole control of the government,

but what we, as a society, have always expected of it. Cf. Smith

v. Doe, 538 U.S. 84, 101 (2003) (“The State makes the facts

underlying the offenses and the resulting convictions accessible

so members of the public can take the precautions they deem

necessary before dealing with the registrant.”); see also Jacobson

v. Commonwealth of Massachusetts, 197 U.S. 11, 26 (1905)

(“[T]he liberty secured by the Constitution of the United States to

every person within its jurisdiction does not import an absolute

right in each person to be, at all times and in all circumstances,

wholly freed from restraint. There are manifold restraints to

which every person is necessarily subject for the common good.”);

St. Thomas Aquinas, Summa Theologiae, pt. 1, question 90, art.

addressing designations for sex offenders are somewhat

instructive but less persuasive. See Hill, 341 So. 3d at 555

(addressing law requiring individual to carry identification

branded with “sex offender”); Marshall, 367 F. Supp. 3d at 1318

(“An offender’s driver’s license is branded with ‘CRIMINAL SEX

OFFENDER’ in bold, red letters.”); see also Marshall, 367 F.

Supp. 3d at 1327 n.4 (“Florida divides offenders into categories:

most have a code (‘943.0435, F.S.’) on their ID, while a ‘sexual

predator’ label is used for the most serious offenders.”).

39

2, https://www.newadvent.org/summa/2090.htm (“[E]very law is

ordained to the common good.”).

Undoubtedly, the designation at issue will never be

requested or desired to be shared by any individual.9 Instead,

this status may be affixed only as a result of the violation of a law

9 It should be noted that Crist is not being asked to convey a

message with which he disagrees but instead challenges being

compelled to convey this information to the public himself.

Contra Full Value Adviss., LLC v. S.E.C., 633 F.3d 1101, 1108

(D.C. Cir. 2011) (“First Amendment concerns are paramount

when the Government compels a speaker to endorse a position

contrary to his beliefs, or to ‘affirm[] a belief and an attitude of

mind’ he opposes.” (alteration in original) (quoting Barnette, 319

U.S. at 633))). But see Marshall, 367 F. Supp. 3d at 1325

(“Plaintiffs do not agree that they are ‘criminal sex offenders.’”

(emphasis added)). In the face of the government’s need to

publicize sexual predator status in the community, this is not

enough. Cf. Cressman v. Thompson, 798 F.3d 938, 963 (10th Cir.

2015) (“[M]erely objecting to the fact that the government has

required speech is not enough; instead, a party must allege some

disagreement with the viewpoint conveyed by this speech.”).

This case is distinguishable from Riley v. National

Federation of the Blind of North Carolina, Inc., 487 U.S. 781

(1988), in which the Supreme Court found a First Amendment

violation where professional fundraisers were compelled to

disclose the amount of charitable contributions that were actually

provided to a charity before appealing for funds from potential

donors. In Riley, the Court found a free speech violation may

exist in either compelled statements of opinion or fact. Id. at

797–98. That said, Riley did not concern the expression of a

public fact—such as a conviction—related to an essential

government operation, but rather a law compelling a private

individual to speak a private fact. Cf. Smith, 538 U.S. at 101

(“Although the public availability of the information may have a

lasting and painful impact on the convicted sex offender, these

consequences flow not from the Act’s registration and

dissemination provisions, but from the fact of conviction, already

a matter of public record.”).

40

drafted, debated, and passed by the legislative branch; signed

into law by the executive branch (i.e., the Florida Governor); and

adjudicated by the judicial branch. See Art. III, §§ 7, 8(a), Fla.

Const.; id. Art. VI § 1. After being convicted through the

adversarial process, this collateral consequence appears on the

face of the predator’s government identification. See §

775.21(3)(d), Fla. Stat. (“The designation of a person as a sexual

predator is neither a sentence nor a punishment but simply a

status resulting from the conviction of certain crimes.”); see also

Smith, 538 U.S. at 98 (“Our system does not treat dissemination

of truthful information in furtherance of a legitimate

governmental objective as punishment.”).

Crist’s designation informs those for whom he voluntarily or

mandatorily presents his license10 that he has been convicted of a

crime the government found necessary to publicize for public

safety. See § 775.21(3)(b)4.–5., Fla. Stat. (noting state strategy

includes “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” and “community and public notification

concerning the presence of sexual predators”); cf. Fletcher v.

State, 699 So. 2d 346, 347 (Fla. 5th DCA 1997) (“Courts are

almost universal in recognizing that registration requirements

for sexual predators are designed to enable the public to protect

itself from dangers posed by sexual predators who are widely

regarded as having high risks of recidivism.”). Thus, a convicted

sexual predator cannot refrain from speaking if awareness of his

10 Because driver licenses are government property merely

in the possession of an individual, this case is also

distinguishable from compelled speech cases where an individual

was obligated to exhibit a government message on his or her

private property. See, e.g., Wooley, 430 U.S. at 713 (holding the

State cannot compel an individual to display a government

message on his private property for public consumption);

McClendon v. Long, 22 F.4th 1330, 1340 (11th Cir. 2022) (“The

Sheriff’s warning sign impermissibly burdens his First

Amendment right to be free from being forced to host a

government message on his private property.”).

41

predator status is essential to the preservation of “an orderly

society.” Barnette, 319 U.S. at 645 (Murphy, J., concurring).

Crist having to produce his license with a sexual predator

designation does not involve the “individual freedom of mind”

contemplated by the Free Speech Clause, see Wooley, 430 U.S. at

714, but instead provides an example of government speech that

does not implicate First Amendment protection because its sole

purpose is necessary for essential state operations. Cf. Arnold,

740 F.3d at 1035 (finding no compelled speech claim arises from

sex offender registration and notification requirements because

they are born of “essential operations of the government”);

Martin, 2025 WL 634833, at *6 (finding no compelled speech in

requiring photo “in furtherance of North Carolina’s essential

operation” of sex offender registry); Does v. Whitmer, 751 F. Supp.

3d 761, 826 (E.D. Mich. 2024) (holding sex offender registry

reporting requirements in furtherance of State’s essential

operations did not implicate First Amendment protections).

EDWARDS, J., concurs.

42

Case No. 5D2022-2966

LT Case No. 2019-CF-001352

SOUD, J., concurring in result with opinion.

Nine members of this Court, sitting en banc, rightly recede

from the majority panel opinion previously delivered in this case

and, in so doing, substantively agree with the conclusions I

reached in my dissent thereto. As a result, I concur with the en

banc majority’s decision—which affirms the trial court’s denial of

Appellant Michael Crist’s motion to dismiss the charges against

him and upholds as constitutional sections 322.212(5)(c) and

322.141(3)(a), Florida Statutes. And I do so for the reasons first

discussed in my then-dissenting opinion, which focused on the

legal issues and precedent argued both to us and below.

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.

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. Thereafter, 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.”

43

The crimes Crist inflicted upon his less-than-12-year-old

victim during a five-month period are horrific in every way.

Ultimately, in accordance with 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 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 DuFresne v. State,

44

826 So. 2d 272, 274 (Fla. 2002); 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.

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,” § 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,” § 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 alters this required marking on the

driver license issued to him, he commits a third-degree felony. See

§ 322.212(5)(c), (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

45

his speech in violation of the First Amendment to the United

States Constitution. His argument fails.

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.

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. “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.”)); see also

Walker, 576 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). 1 And when

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

Pleasant Grove City, “[t]his does not mean that there are no

46

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

and the 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). “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, 767–71 (2018)).

Crist 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

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).

47

the offender’s speech in violation of the First Amendment. 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

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.” W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see also Wooley, 430

U.S. at 715.

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, Florida Statutes clearly provide that which is

self-evident—a Florida driver license is a government-issued

certificate by which the State communicates certain information

set forth by statute. And 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).

48

More specifically, 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

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. 2

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. (providing additional requirements). The holder

of the license has no prerogative to request or require the removal

of this information beyond that contemplated by Florida law.

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

2 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.

49

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, although the

driver license is tendered by the State into Crist’s possession, the

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

322.01(17), Fla. Stat., over which the government continues to

maintain 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—are quintessential government speech. 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 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

50

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 Wooley, 430 U.S. at 713; McClendon, 22 F.4th

at 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 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).

51

2.

Even if, arguendo, the statutorily required “SEXUAL

PREDATOR” marking constitutes a form of compelled speech by

Crist, the statutes requiring the marking and forbidding its

alteration or concealment are constitutional under the First

Amendment and binding United States Supreme Court precedent.

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.

Additionally, the challenged statutes are sufficiently narrowly

tailored to serve this compelling state interest. 3 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

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

tailored’ does not mean ‘perfectly tailored.’” 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.

52

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” of sexual offenders. We

have rightly declined this invitation.

First, Crist’s suggestion 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 and give notification consistent therewith (along with the

substantial registration and monitoring requirements also

applicable).

Further still, Crist presents no colorable basis for the

suggestion that statute numbers pass constitutional muster while

the words “SEXUAL PREDATOR” do not. In an apparent effort to

assuage the shame he purportedly feels by the overt designation

on the driver license, 4 the effect of Crist’s suggestion is to lessen

4 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.

53

the ability of the public to know of the threat presented by

predators in their presence.

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

a most fundamental level—misunderstands the prerogative and

purpose of the judicial branch of government. This Court has

rightly refused to go along.

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 Arts. I–III, U.S. Const.

III.

As sections 322.212(5)(c) and 322.141(3)(a), Florida Statutes,

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

secured by the First Amendment, the trial court correctly denied

his motion.

54

Case No. 5D2022-2966

LT Case No. 2019-CF-001352

MAKAR, J., concurring in part, dissenting in part.

The original three-judge panel in this case, on which I

served, was presented by the parties with a limited but important

legal issue: whether the SEXUAL PREDATOR designation on

Florida driver licenses and identification cards is

unconstitutional under the compelled speech doctrine, which

prohibits the government from forcing individuals from being

associated with information that they do not wish to convey. The

premier example of the doctrine is the United State Supreme

Court’s decision involving New Hampshire’s state’s motto (“Live

Free or Die”) on motor vehicle license tags, which it held was

unconstitutional because it compelled speech with which the

vehicle’s owner disagreed. See Wooley v. Maynard, 430 U.S. 705,

716−17 (1977).

Due to the importance of the issue, the panel ordered oral

argument and asked the parties to be prepared to discuss the

type and scope of judicial test to be applied to determine the

constitutional question. At oral argument, the State conceded

that the compelled speech analysis of Wooley applied; it argued in

its brief only that the SEXUAL PREDATOR designation was the

least restrictive means of advancing the government’s compelling

interest in protecting the public. The State further conceded that

it had not raised any other substantive issues in its answer brief,

including a claim—first raised at oral argument—that Florida

driver licenses are government speech that is immune from First

Amendment scrutiny.

After much internal discussion, the panel majority decided

the issue the parties presented, ruling—consistent with all

existing precedent—that the SEXUAL PREDATOR designation

on a driver license was unconstitutional because, although it

advanced a compelling government interest (protecting the

public), it did not do so in the least restrictive way (leaving it to

the legislature to do so). The panel majority followed as

persuasive the only cases nationwide that involved sexual

predator designations on driver licenses, both of which applied

55

Wooley. The weight of precedent was on Crist’s side, from the

United States Supreme Court’s decision in Wooley on down to the

Louisiana and Alabama courts, which adopted the analytical

framework of Wooley and held that a person’s driver license, even

one containing government speech, must meet the compelled

speech test under the Constitution; neither court is a haven of

left-leaning judges. See generally Wayne A. Logan, Governmental

Authority to Compel the Carrying of Stigmatizing Documents, 20

Stan. J. Civ. Rts. & Civ. Liberties 220, 221 (Sept. 2024) (“To date,

the few courts addressing challenges have condoned branding in

principle, yet required less graphic signifiers, based on First

Amendment government-compelled speech grounds.”).

We certified a question of great public importance and

withheld the mandate, which allowed the statute to continue

operating while our supreme court considered whether to exercise

jurisdiction to decide the matter conclusively.

The en banc opinion, however, bears little resemblance to the

limited legal issue the parties briefed and argued to our three-

judge panel. To the contrary, it is a judicially spawned

intramural creation of its own making. Rather than address and

adjudicate the sole issue the parties presented to the panel, the

en banc court injected wholly new issues and a legal analysis that

no party presented.

The party presentation principle says an appellate court

should generally decide only those legal issues presented to it by

the parties. See Castro v. United States, 540 U.S. 375, 386 (2003)

(Scalia, J., concurring) (“Our adversary system is designed

around the premise that the parties know what is best for them,

and are responsible for advancing the facts and arguments

entitling them to relief.”); see also Berben v. State, 268 So. 3d 235,

239 (Fla. 5th DCA 2019) (Grosshans, J., dissenting) (“As an

appellate court, our role is not to act as counsel for a party by

raising issues that were not briefed.”); see generally United States

v. Sineneng-Smith, 590 U.S. 371, 379–80 (2020) (discussing party

presentation principles and holding unanimously that the Ninth

Circuit’s failure to address the party-presented controversy and,

instead, “takeover” of the appeal by raising new issues, amounted

to an abuse of discretion).

56

The en banc court has gone a bit too far by choosing to cast

the party presentation principle aside and injecting unpreserved

and unraised issues. Indeed, it has pursued and adopted legal

theories the State conceded it did not raise in its answer brief.

Moreover, it ignores crucial concessions and waivers by the State

to reach its conclusions; the State conceded it didn’t brief, and

thereby, waived issues the en banc court nonetheless revives. The

State admitted at oral argument that a Florida driver license

contains government speech that is subject to the compelled

speech test in Wooley. The State never claimed that the content of

a Florida driver license is government speech beyond the reach of

any judicial scrutiny, an issue raised for the first time during the

panel’s oral argument, which is too late in the process for

injecting new legal issue. See Powell v. State, 120 So. 3d 577, 591

(Fla. 1st DCA 2013) (noting that courts generally do not consider

issues raised for the first time at oral argument). The decision

also relies on novel historical research neither party advocated,

endorsed, or had a reasonable opportunity to evaluate (that

includes judges of the court, who first saw it in the internal en

banc review process). The circumstances of this case do not justify

such a far-reaching departure from what the parties presented.

See Sineneng-Smith, 590 U.S. at 379 (“No extraordinary

circumstances justified the panel’s takeover of the appeal.”).

A strict application of the party presentation principle is

reflected by our sibling court in Tallahassee:

An appellate court is not at liberty to address issues

that were not raised by the parties. Nor may an

appellate court depart from its dispassionate role and

become an advocate by second guessing counsel and

advancing for him theories and defenses which counsel

either intentionally or unintentionally has chosen not to

mention. Instead, an appellate court must confine its

decision to the issues raised in the briefs.

Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (citations

and internal quotation marks omitted). It is noteworthy that this

case—decided by the full court—markedly loosens this district’s

approach to the party presentation principle. From now on, we

57

judges can raise and adjudicate issues the parties did not raise;

we can second-guess and advocate theories and defenses that

counsel intentionally chose not to pursue; and we can go so far as

to revivify claims affirmatively waived. We can blaze our own

judicial path and decide unpreserved legal issues with novel

jurisprudential approaches that are advanced for the first time

on appeal by the Court itself.

Of course, a “court is not hidebound by the precise

arguments of counsel” and room exists for reasonable judicial

inquiry beyond what the parties present. Sineneng-Smith, 590

U.S. at 380. Briefing that supplements an appellate court’s

understanding of a case can be helpful, but parties ordinarily

should not be subject to a limitless litany of potential issues a

court advances on its own to support its holding. While the “party

presentation principle is supple, not ironclad,” id. at 376, when a

case can be decided solely on the issue the parties chose to

present—as in this case—a court majority should generally stick

to the playbook and decide only that.1

In this regard, the en banc court could easily decide this case

in a judicially modest approach on the issue and concessions the

parties themselves presented. It could simply conclude that the

SEXUAL PREDATOR designation is the least restrictive means

of protecting the public, and leave it at that, which is all that the

State seeks. Deciding whether the second part of the compelled

speech test is met is the most challenging aspect of the issue the

parties presented; judges of good faith can fall on either side of

this question, as the Louisiana case demonstrates. Reconfiguring

the case, and deciding issues not presented and using an analysis

never before applied, seems unjustified when a more modest and

minimal approach is available, i.e., the approach the parties

actually presented.

1 That said, doctrinal concurrences—which need not hew to

party presentation principles—provide a means for judicial

ruminations on alternative theories in support of a lead opinion.

See Ryan M. Moore, I Concur! Do I Matter?: Developing A

Framework for Determining the Precedential Influence of

Concurring Opinions, 84 Temp. L. Rev. 743, 766 (2012).

58

Turning to the merits, the en banc opinion leaves the

impression that Crist’s legal action seeks to erase his conviction

and status as a sexual predator, which is not accurate. Crist is

not attempting to excise his criminal history, claim innocence, or

rewrite history. Indeed, Crist doesn’t contest he is a sexual

predator as defined under Florida law; and he doesn’t contest that

the State has a compelling interest in having a designation on his

driver license. His sole claim is that the designation used,

SEXUAL PREDATOR, is not the least restrictive manner of

conveying this information on his driver license. That is the only

issue the parties litigated below and presented on appeal. As

mentioned previously, the State commendably conceded the

narrowness of the issue presented and that it was not contesting

on appeal the applicability of the compelled speech test; its only

argument was that it met the test’s second prong, i.e., that the

designation was the least restrictive means.

In this regard, the unpublished, uncited, and easily

distinguishable federal district court passport case, i.e., Doe v.

Kerry, No. 16-cv-0654-PJH, 2016 WL 5339804, at *1 (N.D. Cal.

Sept. 23, 2016), misses the mark. No party cited the case, which

involved a challenge to a federal passport identifier for sexual

offenders. Id. More importantly, the case was decided on ripeness

grounds, id. at *15, making its discussion of the compelled speech

doctrine gratis dicta, meaning a judicial statement of “a legal

principle more broadly than is necessary to decide the case,”

Bryan A. Garner et al., The Law of Judicial Precedent 792 (2016).

In other words, the case didn’t even get out of the starting gate.

That’s because (a) the federal government had not even developed

what the “passport identifier” would be; and (b) the requisite

governmental agency process was incomplete. Id. at *11. As the

district court noted, the “passport identifier provisions of the

[federal statute] are not yet in effect, and it is not clear who would

be subject to the passport identifier provision, what form the

identifier would take, or how it would be employed.” Id. at *14

(emphasis added). Because there was “no final agency action, and

no regulations or guidance, and it is not yet known what form the

identifier provision will take or how it will be implemented . . .

the issues are not yet fit for judicial decision.” Id. at *13. Reliance

on a case in which an important constitutional claim wasn’t even

ready for adjudication is to be avoided.

59

Moreover, the Supreme Court of Louisiana, in State v. Hill,

341 So. 3d 539 (La. 2020), effectively distinguished Kerry, which

made a distinction between compelled facts and compelled

opinions, a distinction the Supreme Court found irrelevant in

Riley v. National Federation of the Blind of North Carolina, Inc.,

487 U.S. 781, 797–98 (1988), holding that compelled statement of

opinions and compelled statement of facts fall within First

Amendment protections because “either form of compulsion

burdens protected speech.” The court in Hill noted:

Thus, we find the attempt by the Kerry court to

distinguish the facts of that case from the Riley

jurisprudence unpersuasive, as Riley did not

differentiate between statements of facts that relate to

controversial or political facts, as opposed to simply

facts. Like in Wooley where the government-issued

license plate read “Live Free or Die,” the identification

card branded with “sex offender” is speech. The fact that

a license plate was found to be government speech did

not immunize it from a compelled speech analysis. Thus,

even though an identification card is government

speech, a compelled speech analysis may still be

required. While Wooley involved an ideological

statement, Riley observed that cases cannot be

differentiated on whether they turn on compelled

statements of opinion or on compelled statements of

fact. Further, the First Amendment does not turn on

whether a person is speaking or being forced to speak,

rather than remaining silent. While no one can force the

state to print a certain design on its license plate, like in

Walker, neither can the state force someone to display a

particular message on his or her license plate either,

like in Wooley.

Hill, 341 So. 3d at 552. Plus, in Kerry, the plaintiffs were seeking

to prevent the use of any type of designation on passports that

would reflect a sexual offense conviction, Kerry, 2016 WL

5339804, at *9; indeed, the government had not yet even decided

on what type of designation to use, id. at *13. In sharp contrast,

Crist does not contest that the State of Florida may use a

60

designation on a driver license, only that the one chosen goes too

far and violates the compelled speech doctrine. The Kerry case,

thereby, is of little value.

Much like Kerry, reliance on the Eleventh Circuit’s case in

Corbitt v. Secretary of the Alabama Law Enforcement Agency, 115

F.4th 1335 (11th Cir. 2024), is a bit tenuous. In that case, the

plaintiffs, “transgender residents of Alabama,” sought “to change

the sex on their driver’s licenses without undergoing (what

Alabama accepts as) sex-change surgery.” Id. at 1340. Unlike

some states, Alabama allows the sex designation on driver

licenses to be changed if the license holders undergo “gender

reassignment surgery” and submit the requisite documentation.

Id. Submission of an amended birth certificate was also

acceptable. Id. at 1346.

The plaintiffs in Corbitt, however, elected to not have

transgender surgery and, instead, asserted a constitutional right

to contest the default mechanism, which used their original birth

certificates. Id. at 1343. On those limited facts, the Eleventh

Circuit held that the plaintiffs’ claims involved no compelled

speech and were subject to only rational basis review. Id. at

1347−50. The Eleventh Circuit’s analysis, however, failed to

consider the most relevant case, Wooley, in its analysis. The

license tag in Wooley was government speech, but the Supreme

Court applied compelled speech analysis. The same should be

true of a Florida driver license; it contains government speech

but is still subject to constitutional scrutiny. That’s because 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). Corbitt

thereby appears to have missed the mark by totally ignoring

Wooley.

Finally, the en banc opinion takes a bit of a jurisprudential

gamble. Rather than address and decide the narrow issue that

the parties presented, it takes on the heavier task of reading tea

leaves to divine if the Supreme Court might modify its compelled

speech jurisprudence, in this case as it applies to state driver

licenses that contain sexual offender designations.

61

But the Supreme Court recently denied review without

comment in Hill, a nearly identical case from Louisiana involving

Wooley’s application to a sexual offender license designation. In

that case, the state supreme court struck down the Louisiana law

in October 2020. See Hill, 341 So. 3d at 555. Louisiana filed a

certiorari petition in the Supreme Court on May 10, 2021, which

was supported by an amici brief of ten other states (which

typically increases the likelihood of review). Petition for A Writ of

Certiorari, Louisiana v. Hill, (No. 20-1587), 2021 WL 1966520

(May 10, 2021); see also Brief of Oklahoma et al. as Amici Curiae

in Support of Petitioner, Louisiana v. Hill, (No. 20-1587), 2021

WL 2458642 (June 14, 2021). The state supreme court denied the

state’s request for a stay and Justice Alito, notably, did so as well.

Louisiana v. Hill, 141 S. Ct. 1232 (2020). The questions presented

were:

(1) May a State require convicted sex offenders to obtain

and carry a state identification bearing the words “sex

offender” without facially violating the First

Amendment’s prohibition on compelled speech?

(2) Does a convicted sex offender have a First

Amendment right not to be prosecuted for fraudulently

altering a state identification card after scratching off a

statutorily required sex-offender designation?

Petition for Writ of Certiorari, Louisiana, (No. 20-1587) 2021 WL

1966520. These are the same questions raised in this case, yet

the Supreme Court denied review on October 4, 2021, without

any dissent, commentary, or suggestion that the Louisiana

Supreme Court had erred. Louisiana v. Hill, 142 S. Ct. 311

(2021). Denial of review is not an adjudication on the merits; the

fact the Supreme Court had the opportunity to review the same

issues as this case, including Wooley’s application, but chose to

take a pass, suggests the analysis in Hill and related cases didn’t

ruffle any judicial feathers. It was yet another reason why the

panel majority chose to follow existing precedents, albeit not

binding but persuasive, given the Supreme Court’s denial of

review in Hill.

62

***

The en banc court strays on the merits by deciding issues the

Court, and not the parties, raised on its own, devoting many

pages to the unraised compelled speech issue in concluding that

Florida driver licenses are government speech, immune from

judicial scrutiny. In doing so, it ignores the parties’ briefs and

concessions. The Supreme Court has clearly said that compelled

government speech is subject to constitutional limitations under

the Free Speech clause. The en banc opinion errs in holding

otherwise and that Wooley—the United States Supreme Court’s

license plate case—plays no role in a driver license case. Wooley

is the closest analogue in deciding this case and clearly favors

Crist’s position as the Louisiana Supreme Court and Alabama

federal court concluded in applying Wooley. Regardless of the

outcome in this case, the Court should limit its analysis to only

the issue the parties present.2 On the merits, the best course is to

do what the panel majority did: decide the issue the parties

presented, stay its decision, and let a higher authority

definitively resolve this important case.

That said, the en banc opinion correctly holds that

jurisdiction exists because Crist adequately preserved his

constitutional challenge, which is dispositive for purposes of

appellate review. It is also partially correct in determining that a

Florida driver license contains portions that are government

speech (such as the SEXUAL PREDATOR designation). As

discussed below, a Florida driver license has features that are

2 Beyond this case, a worrisome trend for traditional judicial

conservatives is appellate courts commandeering a case by

raising and deciding issues the parties did not raise, even

inviting new amici and adding new intervening parties to an

appeal to brief the newly spawned issues. See, e.g., Doe v.

Uthmeier, No. 5D2025-1363, 2025 WL 1386707 (Fla. 5th DCA

May 14, 2025) (sua sponte raising issues beyond those presented

and inviting the attorney general, but not other interested

organizations, to participate as amicus). This pattern is precisely

what the United States Supreme Court unanimously denounced

recently in United States v. Sineneng-Smith, 590 U.S. 371, 372

(2020) (concluding that practices that “takeover” an appellate

case are an abuse of appellate discretion).

63

purely personal speech (such as “organ donor,” “Veteran,” and

“Deaf”) that are included solely at the option of the license holder;

as such, Florida driver licenses are a speech hybrid. What follows

is the panel’s majority opinion, now a dissent, on the merits of the

issue the parties themselves presented.

Dissenting Opinion on the Merits

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

3

3 Because this case involves a Florida driver license, rather

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

64

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

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

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).

65

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

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,

66

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.

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

67

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

government 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

“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 government 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

68

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

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

government 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

69

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

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 government 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

70

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.

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

71

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

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

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