When Child Protection Meets Constitu...

Government entities implementing child protection measures often focus solely on effectiveness—does this policy make children safer? But a recent Eighth Circuit Court of Appeals decision reminds us that even well-intentioned safety measures must respect constitutional boundaries. The recent ruling in Sanderson v. Hanaway, following the logic of the 11th Circuit in 2022 in McClendon v. Long, clarifies that governments, even when protecting children, cannot compel speech without compelling evidence of narrow tailoring to meet that goal.

The Case: Halloween Restrictions and Compelled Speech

Missouri’s Halloween statute imposed four requirements on all registered sex offenders: remain indoors between 5 p.m. and 10:30 p.m., avoid Halloween-related contact with children, turn off all exterior lights, and post a sign reading “No candy or treats at this residence.”

Thomas Sanderson challenged the mandatory sign provision as unconstitutional compelled speech. The Eighth Circuit agreed, striking down the sign requirement while leaving the conduct-based restrictions intact. The panel concluded that the state failed to prove the signs protected children beyond what the other provisions already accomplished.

The Legal Framework: Compelled Speech Doctrine

The First Amendment protects both the right to speak and the right to refrain from speaking. Compelling individuals to “personally speak the government’s message” violates constitutional protections, whether the mandated speech consists of facts or opinions.

Missouri’s sign mandate crossed this line. While the statute’s other provisions regulated conduct (staying indoors, avoiding children, turning off lights), the sign requirement mandated pure speech. It required registrants to post specific government-dictated language without regulating any underlying behavior. The court found that this dictated language was not narrowly tailored to meet the state’s goal of protecting children.

Strict Scrutiny: Where Missouri’s Mandate Failed

Strict scrutiny is the most demanding constitutional test. Under this standard, the government must prove the law furthers a compelling interest and is narrowly tailored to achieve that interest through the least restrictive means.

Missouri cleared the first hurdle easily. Neither party contested that protecting children from sexual abuse represents a compelling government interest. The court agreed without hesitation, also acknowledging that Halloween presents unique risks justifying restrictions on offenders’ conduct.

The problem with the sign mandate is that it was not narrowly tailored to prevent the risks of Halloween. Missouri offered several justifications: signs helped law enforcement ensure compliance, made enforcement more efficient, and provided extra protection for children. The evidence, however, failed to support these claims.

The enforcement efficiency argument collapsed under scrutiny. Law enforcement testified that compliant signs could be “as small as a postage stamp” and placed anywhere—on back doors, inside houses, locations invisible to officers or children. If officers couldn’t see signs from their vehicles, they still had to exit to verify other provisions of the statute. The vague requirement for “signs” added no efficiency.

More significantly, when the preliminary injunction blocked the sign requirement, officers continued effectively enforcing the statute’s other provisions. One officer conceded that “the sign simply allows [officers] to have that extra provision that [they] are checking the right home”—helpful for officer convenience, perhaps, but not necessary for child protection.

The child protection rationale fared no better. Officers testified that children often approach houses with lights off, making the sign theoretically less ambiguous. But this reasoning assumed children or parents would see the signs—an assumption undermined by testimony that compliant signs could be invisible or illegible. Even when visible, no evidence demonstrated that signs provided protection beyond what the other statutory provisions already accomplished.

The state’s expert on grooming risks couldn’t identify any additional protection the signs provided. As the court noted, “nothing in the record indicates that a child knocking on a door that no one opens presents a risk to that child.” With registrants already required to stay inside, avoid contact with children, and keep lights off, the signs added nothing substantive to child safety.

The publicly available sex offender database undermined the warning rationale. The court also noted that parents in Missouri already had access to registrants’ addresses. The signs didn’t provide information unavailable through existing means.

Critically, the court emphasized that narrow tailoring doesn’t require perfection—some inefficiencies are acceptable. But Missouri’s sign mandate failed because the state couldn’t demonstrate the signs were necessary at all, much less that they were the least restrictive means of achieving the compelling interest in child protection.

The Broader Constitutional Context

Sanderson aligns with established compelled speech precedent. The Eleventh Circuit reached identical conclusions in McClendon v. Long (2022) regarding sheriff-placed Halloween signs. The Supreme Court’s Wooley v. Maynard invalidated mandatory “Live Free or Die” license plates, while Riley v. National Federation of the Blind struck down required fundraiser disclosures.

The decision distinguishes Rumsfeld v. FAIR, where speech requirements (announcing military recruiter visits) were incidental to regulating conduct (providing campus access). Missouri’s sign mandate, requiring only speech without connected conduct, fell on the wrong side of this line.

Why This Decision Strengthens Child Protection

Striking down Missouri’s sign mandate doesn’t weaken child protection—it clarifies constitutional parameters for effective regulation. The surviving provisions demonstrate that governments retain broad authority to restrict registrants’ conduct when protecting children.

The decision reinforces that governments must ground child protection in evidence rather than symbolism. Policies creating the appearance of safety without demonstrable effectiveness waste resources, burden constitutional rights, and potentially provide false assurance. By requiring proof that speech-compulsive measures actually enhance safety, Sanderson pushes policy toward substantive rather than performative protection. Effective child protection and constitutional fidelity require the same foundation: policies grounded in evidence and precisely tailored to actual risks.