Corey McClendon v. Gary Long ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10092
____________________
COREY MCCLENDON,
on behalf of themselves and a class of similarly situated persons,
REGINALD HOLDEN,
on behalf of themselves and a class of similarly situated persons,
CHRISTOPHER REED,
on behalf of themselves and a class of similarly situated persons,
Plaintiffs-Appellants,
versus
GARY LONG,
in his official capacity and individually,
JEANETTE RILEY,
individually,
SCOTT CRUMLEY,
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individually,
Defendants-Appellees,
JOHN AND OR JANE DOES,
1-3, individually,
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cv-00385-MTT
____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and HULL, Circuit
Judges.
HULL, Circuit Judge:
In October 2018, two deputies from the Butts County
Sheriff’s Office placed signs in the front yards of the residences of
all 57 registered sex offenders within the County, warning “STOP”
and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Before
Halloween 2019, three registered sex offenders living in Butts
County sued, seeking to enjoin the Sheriff from placing the signs
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again. The district court denied a permanent injunction and
granted summary judgment in favor of the Sheriff.
After review and with the benefit of oral argument, we
conclude that the Sheriff’s warning signs are compelled
government speech, and their placement violates a homeowner’s
First Amendment rights. Thus, we vacate the district court’s
judgment in favor of the Sheriff and remand for further
proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. The Plaintiffs
Plaintiffs Reginald Holden, Corey McClendon, and
Christopher Reed are residents of Butts County and are required to
register as sex offenders under O.C.G.A. § 42-1-12, et seq. The
Georgia statute not only requires individuals with certain
convictions to register as sex offenders, but also requires Georgia
to classify registrants based on whether they pose an increased risk
of recidivism. Id. § 42-1-14. None of the three plaintiffs have been
classified as posing an increased risk of recidivism.
In 2004, Holden was convicted of lewd and lascivious
battery in Pinellas County, Florida. He has been a homeowner in
Butts County since May 2017. He lives by himself and works as a
warehouse coordinator.
In 2001, McClendon was convicted of statutory rape of a
minor in Butts County. He lives with his daughter and his parents,
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who own the home where they all reside. He holds a commercial
driver’s license.
In 2007, Reed was convicted of sexual assault of a minor in
Cook County, Illinois. He works as a truck driver and has lived
with his father, who owns their home, since 2011.
In the 2020 order now on appeal, the district court found
that all three plaintiffs “have, by all accounts, been rehabilitated
and are leading productive lives.” The Sheriff does not dispute this,
nor does the record support a contrary finding.
B. Halloween 2018
Several days before Halloween in 2018, at the direction of
Sheriff Gary Long, Deputies Jeanette Riley and Scott Crumley
placed warning signs in the front yards of the residences of every
registered sex offender in Butts County, including Holden,
McClendon, and Reed. At the residences, the deputies also gave
to, or left for, the registrants a leaflet stating that the signs were the
property of Sheriff Long and could not be removed by anyone
other than the Butts County Sheriff’s Office.
This was the sign, which had the same message on both
sides:
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According to Deputy Crumley, the signs were placed “in the
general vicinity within probably 2 feet front or back of the mailbox
or next to the driveway.” As an example, this picture shows the
sign placed at Plaintiff McClendon’s residence:
The Sheriff’s Office placed these warning signs in front of
the listed homes of all registered sex offenders in Butts County,
without considering whether the State had classified any of them
as posing an increased risk of recidivism. The deputies collected
the signs on November 1.
Plaintiff Holden came home and saw the sign in his front
yard in 2018. He then called Deputy Riley. At that time, Riley
oversaw Butts County’s compliance with Georgia’s sex-offender
registry requirements. Holden asked why the sign was placed on
his lawn without his knowledge or permission. Riley told Holden
that the sign was the property of the Sheriff’s Office and he should
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not remove it from the right-of-way. Between Riley’s statement
and the leaflet stating that no one could move the sign except the
Sheriff’s Office, Holden believed he would be arrested if he moved
the sign. And Sheriff Long later testified that he would not have
permitted Holden to cover the sign or place a competing sign.
After the warning signs were placed, Sheriff Long posted a
message on his official Facebook page, along with a picture of the
sign. In his post, he explained that the signs had only been placed
in front of the homes of registered sex offenders. His message also
represented that Georgia law forbids registered sex offenders from
participating in Halloween:
It is now undisputed, however, that Georgia law does not
forbid registered sex offenders from participating in Halloween.
At an injunction hearing, Sheriff Long testified that he
considered the Facebook post to be an effective way to
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communicate to Butts County residents that the signs marked the
residences of sex offenders. The goal of his Facebook post was to
associate the signs with the registrants who lived on the properties.
Sheriff Long explained that he believed the signs were
“imperative” to warn the public about the residences of registered
sex offenders. Prior to 2018, the Sheriff’s Office had provided
registrants with a flier at Halloween and asked them to place it on
their doors. He believed that placing a yard sign out by the road
would be more effective because it would prevent children from
walking to the door.
Since 2013, Long had been Sheriff in Butts County and in
that time did not know of any incidents in Butts County involving
registered sex offenders on Halloween. In fact, during his six-year
tenure as Sheriff, there were no issues with any registered sex
offenders in Butts County having unauthorized contact or
reoffending with minors at any time.
C. Plaintiffs’ Lawsuit
In September 2019, the plaintiffs sued Sheriff Long in his
official and individual capacities, Deputy Riley in her individual
capacity, and three John Doe defendants. The complaint alleged
that the defendants had violated the plaintiffs’ First Amendment
rights by compelling their speech. 1 It sought declaratory and
1 The plaintiffs also alleged a state-law trespass claim and a takings claim under
the Fifth and Fourteenth Amendments. In their appellate brief, however, they
do not raise any arguments about their trespass or takings claims. They argue
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injunctive relief, as well as damages. The district court granted a
preliminary injunction based on the First Amendment claim and
prohibited the Sheriff from placing the signs in the plaintiffs’ yards
for Halloween 2019.
In April 2020, the plaintiffs amended their complaint, adding
Deputy Crumley as a defendant and dropping the John Doe
defendants. In September 2020, both parties moved for summary
judgment. In addition, the plaintiffs moved for a permanent
injunction against the placement of the signs.
The defendants attached to their summary judgment
motion a declaration by Sheriff Long, which emphasized that
Sheriff Long had never prohibited a sex offender from placing his
own sign contesting the Sheriff’s warning sign. Long declared:
To my knowledge there was never a situation
where any sex offender registrant expressed some
desire to place the offender’s own sign or message
relating to the Sheriff’s Office sign. The Sheriff’s
Office has never had a policy about that, and there is
no Sheriff’s Office prohibition on signage on private
property that complies with state law and local
ordinances.
Had any sex offender registrant placed his own
sign relating to the Sheriff’s Office sign, any response
by the Sheriff’s Office would have involved review of
only that the district court erred in granting summary judgment on their First
Amendment claims. Thus, we do not address their trespass or takings claims.
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applicable law and consultation with a competent
attorney. However, to my knowledge that situation
never arose.
The district court granted the defendants’ motion for summary
judgment and denied the plaintiffs’ motion for summary judgment
and a permanent injunction.
Regarding the plaintiffs’ compelled speech claim, the district
court found that “[t]he Plaintiffs are free to offer speech competing
with the Sheriff’s Office’s views and to disassociate themselves
from those views.” Thus, because (1) the signs were government
speech and (2) the plaintiffs were free to disagree by posting a
competing message, no reasonable observer could conclude that
the residents of the properties where the signs were posted agreed
with the sign’s message. The court determined that the signs were
not compelled speech because “[n]o reasonable jury could find that
there is a risk the Plaintiffs will appear to endorse the signs’
message.”
The district court further found that Sheriff Long was
immune from any damages claims in his official capacity under the
Eleventh Amendment, and that all three defendants were entitled
to qualified immunity from the plaintiffs’ claims for damages in
their individual capacities, as they had not violated any clearly
established law. The district court dismissed the plaintiffs’ First
Amendment claims for injunctive relief without prejudice and their
claims for damages with prejudice.
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The plaintiffs timely appealed. On appeal, they do not
challenge the district court’s rulings as to damages or qualified
immunity. The only remedies they continue to seek are
declaratory and injunctive relief against Sheriff Long in his official
capacity on their First Amendment claim.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment, viewing the record in the light most favorable to the
non-moving party. NAACP v. Hunt, 891 F.2d 1555, 1559–60 (11th
Cir. 1990). A movant is entitled to summary judgment upon
showing that there are no genuine disputes of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a).
III. SHERIFF’S YARD SIGNS ARE COMPELLED
GOVERNMENT SPEECH
First Amendment protection “includes both the right to
speak freely and the right to refrain from speaking at all.” Wooley
v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 1435 (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. (quotation marks omitted). The compelled
speech doctrine applies to ideological speech and purely factual,
non-commercial speech. Riley v. Nat’l Fed’n of the Blind, 487 U.S.
781, 797–98, 108 S. Ct. 2667, 2677–78 (1988); Nat’l Inst. of Family
and Life Advocs. v. Becerra, 138 S. Ct. 2361, 2372–73 (2018).
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In Wooley, the Supreme Court held that it was
unconstitutional for the State of New Hampshire to prosecute a
citizen for covering the State motto, “Live Free or Die,” on his
license plate. Wooley, 430 U.S. at 713, 97 S. Ct. at 1434–35.
Specifically, the Court held that a state could not “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. The Court stated that the New Hampshire statute
“in effect requires that appellees use their private property as a
‘mobile billboard’ for the State’s ideological message or suffer a
penalty.” Id. at 715, 97 S. Ct. at 1435.
This case is materially similar to Wooley. The Sheriff’s
warning signs, like the State motto on the New Hampshire license
plate, are government speech. Indeed, the signs expressly bore the
imprimatur of government, stating that they were “a community
safety message from Butts County Sheriff Gary Long.” The
deputies placed the signs despite the homeowners’ and/or
residents’ objections. The deputies explained, both verbally and
through the accompanying leaflet, that only the Sheriff’s Office
could remove the signs. See Mech v. Sch. Bd., 806 F.3d 1070, 1075
(11th Cir. 2015) (holding that banners on school fences were
government speech because they “[bore] the imprimatur of the
school[] and the school[] exercise[d] substantial control over the
messages that they convey[ed]”). In other words, the Sheriff
required the use of private property as a stationary billboard for his
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own ideological message, “for the express purpose that it be
observed and read by the public.” Wooley, 430 U.S. at 713, 97
S. Ct. at 1434–35. The Sheriff’s warning signs are a classic example
of compelled government speech.
In concluding otherwise, the district court erred in two
ways. First, it determined that a compelled government speech
claim requires a finding that a reasonable third party would view
the speech as “endorsed” by the plaintiff. Wooley contains no such
requirement. Wooley held New Hampshire’s law unconstitutional
because the law required the plaintiff to “participate in the
dissemination of an ideological message” against his will, and it
used the plaintiff’s private property (his vehicle) to do so. Id. at 713,
97 S. Ct. at 1434. That the message is intended to be seen by the
general public is of course necessary to the idea that the State is
using the plaintiff’s property to disseminate the message. But the
primary harm in Wooley is just that: the required use of the
plaintiff’s property as a “billboard” for government speech. There
is no explicit or implicit requirement that those reading the
“billboard” believe the plaintiff has endorsed a government
message that he is being forced to host. Id.; cf. Hunt, 891 F.2d at
1566 (holding that Alabama did not compel its citizens’ speech by
flying the confederate flag at the capitol building because the State
did “not compel its citizens to carry or post the flag themselves” or
“to support whatever cause it may represent”).
Second, the district court erred by determining that the
plaintiffs’ ability to place their own yard signs disagreeing with the
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warning signs could cure the original violation. This ignores that
the harm here is the forced display of a government message on
private property in violation of the “right to refrain from speaking
at all,” see Wooley, 430 U.S. at 714, 97 S. Ct. at 1535, not the “forced
appearance of endorsement” of that message. Indeed, yard signs at
“one’s own residence” are a “distinct and traditionally important
medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 56, 57
n. 16, 57 114 S. Ct. 2038, 2046 & n. 16 (1994). Residents, then,
should be able to decide whether to use that traditional medium
for speech in the first instance.
No limiting principle exists under the district court’s post-a-
second-sign version of the compelled speech doctrine. Cf. W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 636, 63 S. Ct. 1178, 1184
(1943) (“If validly applied to this problem, the utterance cited
would resolve every issue of power in favor of those in
authority. . . .”). If the only constitutional requirement for the
government to compel citizens to host its speech on their private
property is that it also permits them to post a second sign
disagreeing with the first, the Sheriff could place any sign
identifying himself as the speaker in any county resident’s yard.
This result is inconsistent with Wooley. The Sheriff’s yard signs
are compelled government speech, and their placement in a
homeowner’s yard is unconstitutional unless the signs are a
narrowly tailored means of serving a compelling government
interest.
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IV. SHERIFF’S YARD SIGNS DO NOT PASS STRICT
SCRUTINY
When the government “compel[s] speakers to utter or
distribute speech bearing a particular message,” as the Sheriff does
here, such a policy imposes a content-based burden on speech and
is subject to strict-scrutiny review. Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 641–42, 114 S. Ct. 2445, 2459 (1994); see Pacific Gas &
Elec. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 19, 106 S. Ct. 903,
913 (1986). Thus, to be valid under the First Amendment, the
placement of the warning signs must be a narrowly tailored means
of serving a compelling state interest. Pacific Gas & Elec., 475 U.S.
at 19, 106 S. Ct. at 913; see Williams-Yulee v. Fla. Bar, 575 U.S. 433,
454, 135 S. Ct. 1656, 1671 (2015) (explaining that “narrowly
tailored” does not mean “perfectly tailored” (internal quotation
marks omitted)).
All parties agree—as do we—that the Sheriff’s interest in
protecting children from sexual abuse is compelling. However, the
yard signs are not narrowly tailored to achieve that goal.
In 2018, the Sheriff’s deputies placed the signs in the yards of
all 57 registered sex offenders in Butts County. Prior to placing the
signs, the Sheriff did not consider whether any of the registrants
were classified by Georgia as likely to recidivate. 2 He even
2 In his brief, the
Sheriff argues that all convicted sex offenders pose enough of
a recidivism risk to justify his signs. Because Georgia has a system requiring
all sex offenders to register and be monitored, the Sheriff argues that he can
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admitted that, since he took office in 2013, he had never had an
issue with a registrant having unauthorized contact or reoffending
with a minor on Halloween or at any other time. The Sheriff has
not provided any record evidence that the registrants in Butts
County actually pose a danger to trick-or-treating children or that
these signs would serve to prevent such danger. And the Sheriff
bears the burden of proof on the issue of whether his signs are
narrowly tailored. See Otto v. City of Boca Raton, Fla., 981 F.3d
854, 868 (11th Cir. 2020).
Assuming that yard signs alerting people to the residences of
registered sex offenders on Halloween would prevent the sexual
abuse of children (which, we repeat, is not supported by any record
evidence), the signs are not tailored narrowly enough. Sheriff Long
testified that the sex-offender registry, which contains each
registrant’s name, address, and photograph, is available on the
State of Georgia’s website, on the Butts County website, at Butts
County administrative buildings, and at the Butts County Superior
Court Clerk’s Office. The Sheriff has made the sex offender
treat them all as a dangerous class too, and his warning signs can mitigate that
danger.
The Sheriff ignores that Georgia’s registration system includes an
individual determination of recidivism risk performed by a State board. See
O.C.G.A. § 42-1-14. The statute even requires county sheriffs to maintain a
list of each resident offender’s risk classification. Id. § 42-1-12(i)(1). Yet the
Sheriff has not placed any evidence into this record showing that the State has
classified any of the 57 registrants living within Butts County as having an
increased risk of recidivism.
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registry widely available through government sources, diminishing
the need to require residents to disseminate the same information
in yard signs on their private property. And, while “narrowly
tailored” does not mean “perfectly tailored,” Williams-Yulee, 575
U.S. at 454, 135 S. Ct. at 1671 (internal quotation marks omitted),
the Sheriff has not met his burden to show the yard signs were
narrowly tailored, see Otto, 981 F.3d at 868, because he has not
offered evidence that any of the yard signs would accomplish the
compelling purpose of protecting children from sexual abuse.
For these reasons, the Sheriff’s placement of the yard signs
in a homeowner’s yard is not narrowly tailored to serve the
compelling government interest of protecting children from sexual
abuse.
V. SHERIFF’S ARGUMENT ABOUT RIGHTS-OF-WAY
Even if his signs are compelled government speech that do
not survive strict scrutiny, the Sheriff argues that his intent was,
and remains, to place the warning signs in the public rights-of-way
that abut the private homes where the plaintiff registrants reside.
The Sheriff argues that the plaintiffs cannot control what a
government actor, like the Sheriff, might place on public property
(the right-of-way) in front of their private residences.
Although a government entity may own a public right-of-
way outright in fee, private homeowners may also own the
property abutting a road in fee and grant an easement to a
government entity for various public road or transportation
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purposes. See O.C.G.A. § 32-3-1. Here, though, the Sheriff has not
shown that a government entity—much less the Sheriff—owns a
right-of-way in fee across the front yards where the plaintiffs
reside. 3 Further, even if a government entity had a right-of-way
easement on any of the three properties, the Sheriff’s evidence does
not address who possesses the easement or for what purpose.
Even assuming that the record established that the
government owned the right of way in fee and the signs were
placed in the right of way, Georgia law makes it “unlawful for any
person to erect, place, or maintain within the dedicated right of
way of any public road any sign, signal, or other device” unless
authorized by a state law or a municipal ordinance. See O.C.G.A.
§ 32-6-51(a)(1), (2). And the Sheriff conceded at oral argument that
no Georgia statute or Butts County ordinance authorizes him to
place his warning signs in the public rights-of-way.
While Sheriff Long cites no case law applying § 32-6-51, the
plaintiffs cite Fortner v. Town of Register, a Georgia Supreme
Court decision holding a municipality’s actions to be unlawful
3 Before placing the signs in 2018, the deputies did not conduct research to
assure themselves the signs would be placed in rights-of-way. In 2019, for the
preliminary injunction hearing, the Sheriff introduced some poorly scanned
copies of subdivision plats that do not include any keys, legends, or labels; the
plat maps are not self-explanatory. He also introduced aerial Google Maps
photos of roads with lines drawn across them. But those maps do not indicate
who owns the underlying fee where the lines are drawn, or that the lines
represent right-of-way easements—much less who possesses any easements
or for what purpose.
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under § 32-6-51(b), which uses language identical to § 32-6-51(a) to
describe who is covered by the statute. See 604 S.E.2d 175, 278 Ga.
625 (2004). Section 32-6-51(b) makes it “unlawful for any person to
erect, place, or maintain” certain unauthorized structures visible
from public roads. O.C.G.A. § 32-6-51(b) (emphasis added).
In Fortner, the Georgia Supreme Court held that the
defendant municipality could be held liable for negligence because
it erected unauthorized structures that created a traffic hazard, in
violation of § 32-6-51(b). 604 S.E.2d at 178–79, 278 Ga. at 627–28.
Because both sections of the Georgia statute contain the same
coverage language (“any person”) and forbid similar conduct, the
Fortner decision suggests that the Sheriff, like the municipality in
Fortner, is subject to the restrictions in § 32-6-51 and is barred by
§ 32-6-51(a) from placing his warning signs in the alleged public
rights-of-way without legislative authority to do so.
Another code section in Title 32 also points us in this
direction. Section 32-6-6 makes it “unlawful for any person” to
camp on state highways. O.C.G.A. § 32-6-6(b) (emphasis added).
It continues: “This Code section shall not apply to state or local
government officials or employees acting in their official capacity
and while performing activities as part of their official duties.” Id.
§ 32-6-6(d). If the Georgia legislature did not consider
“government officials or employees acting in their official capacity”
to be “any person” in Title 32, then arguably there would be no
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need to carve them out of the highway camping restriction in
§ 32-6-6. 4
At bottom, state law governs the right-of-way issues here,
and we are loath to opine conclusively about them. All we do in
this case is conclude that, based on this record and the limited
briefing before us, the Sheriff has failed to show either that he is not
covered by the sign-posting prohibition in § 32-6-51(a) or that he is
authorized to place the yard signs.
VI. APPLICATION TO THE THREE APPELLANTS
We now apply the above First Amendment principles to the
plaintiffs in this case.
A. Plaintiff Holden Is Entitled to Summary Judgment
Plaintiff Holden owns his home. 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. The First Amendment prevents Sheriff Long from
4All sections in Title 32 use this broad definition of “person”: “any individual,
partnership, corporation, association, or private organization of any
character.” O.C.G.A. § 32-1-3(20). The Sheriff’s brief, however, did not cite
this definitional code section or case law construing it, nor did his brief
expressly argue that he is not a “person” or “individual” under § 32-1-3(20).
Rather, the Sheriff’s conclusory argument, as best we can tell, is that
“private citizens” cannot place signs in public rights-of-way and that
“[g]overnment signs commonly are placed on right-of-way areas in Butts
County.” Since the Sheriff does not cite or argue about this definitional code
section, nothing in our opinion should be read as construing § 32-1-3(20).
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posting his warning sign on Holden’s property. Thus, we reverse
the district court’s judgment in favor of the Sheriff on Holden’s
First Amendment claim and remand for the district court (1) to
grant summary judgment in Holden’s favor on that claim and (2) to
permanently enjoin the Sheriff from requiring Holden to display a
sign on his front yard relating to his registered sex offender status.
B. Issues Remain as to Plaintiffs McClendon and Reed
Plaintiffs McClendon and Reed both live with their parents
on property owned by their parents. McClendon, however, claims
he has a right to exclude persons from his parents’ property, he
helps with chores, and he has paid rent in the past. And the record
is not developed as to Reed’s arrangement as a resident or tenant
on his father’s property. Reed’s father, though, did call the Sheriff’s
Office to complain that he did not want the sign on his property.
If Plaintiffs McClendon and Reed have no ownership or
tenancy interest in the properties where they reside (such as under
state common law or by lease contract), then threshold issues arise
as to whether they have any right to complain about a sign
displaying government speech on another person’s property. We
need not address these threshold issues because McClendon and
Reed have now expressed an intent on remand to seek to amend
their complaint to add their parents as plaintiffs. If the district court
allows the plaintiffs to so amend, that would resolve the issues. If
not, the district court will need to address these issues in the first
instance.
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At this stage, neither McClendon, Reed, nor the Sheriff have
shown they are entitled to summary judgment. Thus, we vacate
the entry of judgment for the Sheriff on McClendon’s and Reed’s
First Amendment claims and remand for further proceedings.
VII. CONCLUSION
For these reasons, we: (1) reverse the district court’s
judgment in favor of the Sheriff on Plaintiff Holden’s First
Amendment claim and remand with instructions to enter
summary judgment and a permanent injunction in Holden’s favor;
and (2) vacate the judgment in favor of the Sheriff on Plaintiffs
McClendon’s and Reed’s First Amendment claims and remand for
further proceedings consistent with this opinion.
REVERSED IN PART; VACATED IN PART; AND
REMANDED.