Sanderson v. Hanaway, decided today by Eighth Circuit Judge Jane Kelly, joined by Judges James Loken and Ralph Erickson, struck down part of a Missouri law that provides,

Any person required to register as a sexual offender … shall be required on October thirty-first of each year to:

1. Avoid all Halloween-related contact with children;
2. Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to employment or medical emergencies;
3. Post a sign at his or her residence stating, "No candy or treats at this residence";
4. Leave all outside residential lighting off during the evening hours after 5 p.m.

From the court's opinion:

The First Amendment's protection "includes both the right to speak freely and the right to refrain from speaking at all." … The sign mandate … explicitly requires registrants to post a sign bearing a specific message…. [T]he sign mandate compels speech and, thus, is unconstitutional unless it can survive strict scrutiny….

The sign mandate will survive strict scrutiny only if it "furthers a compelling interest and is narrowly tailored to achieve that interest." The district court found that "Defendants have established a compelling interest in restricting certain conduct of sexual offenders on Halloween that satisfies the strict scrutiny standard." Neither party challenges that determination on appeal, and understandably so. We therefore move directly to the question of whether the statutory provision is narrowly tailored. In other words, is the sign mandate the least restrictive means of achieving the government's compelling interest

At trial, the State's witnesses offered several justifications for the sign mandate. Law enforcement officers testified that the signs were beneficial for enforcement purposes because the signs (1) allow them to "be able to ensure that there is compliancy," (2) make enforcement of the Halloween statute more efficient, and (3) provide an extra layer of protection for children.

The evidence presented, however, failed to show how the sign mandate achieved these goals. The statute does not set any requirements for the size or the location of the mandated signs. According to one law enforcement officer, a registrant could put "a little itty-bitty [ ] Post-it [note]" on the door and still be in compliance, so long as the note had "the correct verbiage." Another law enforcement witness confirmed that a compliant sign "could be as small as a postage stamp." Both officers further testified that, under the statute, a registrant would still be in compliance even if the sign was on the back door or inside the house. Even if a sign could result in greater efficiency for law enforcement and heightened protection for children, a sign that is not visible to law enforcement or trick-or-treating children fails to serve either purpose.