# Michael Crist v. State of Florida

> District Court of Appeal of Florida · August 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11121319

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** August 15, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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A-5
A-6
A-7
A-8
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A-13
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 i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11121319. Public record. Not legal advice.