“Operation Boo” Prompts Halloween Lawsuit by Sex Offenders

What is Operation Boo?

Each year for the last 21 years, the California Department of Corrections and Rehabilitation (CDCR) implements “Operation Boo.” Operation Boo requires that some registered sex offenders on parole post signs on their front doors on Halloween saying “We Don’t Participate in Trick or Treating.” This can be required even of sex offenders who have never shown a tendency to victimize children. If sex offenders do not comply, they may face legal consequences.

Some San Diego-area sex offenders are now challenging this requirement. Advocates say that the signs pose a danger to sex offenders, making them “sitting ducks” for harassment or vigilantism. A lawsuit recently filed in federal court also claims that the sign requirement violates the First Amendment’s prohibition on compelled speech.

What is Compelled Speech?

Compelled speech occurs when the government forces a person to say something. The Supreme Court has stated that “[t]here is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.” In other words, freedom of speech means having a choice over what is communicated to others. In this case, the sex offenders feel that they have no choice but to post “We Don’t Participate in Trick or Treating,” in violation of their rights. 

However, not all compelled speech violates the constitution. The First Amendment is violated in cases where the government forces an individual to affirm a religious, political, or ideological cause. It is also violated where the government makes “an individual, as part of his daily life…to be an instrument for fostering public adherence to an ideological point of view that he finds unacceptable.” One interesting facet of this case may be whether or not the “Operation Boo” signs convey an ideological point of view (for example, that registered sex offenders are so dangerous that they need to be identified specially on Halloween).

Compelled Speech and Sex Offenders

Registered sex offenders are often treated differently than average citizens. Their behavior can be regulated in certain ways for community safety, particularly under Megan’s Law, a federal statute. Sex offenders are required to register and communities receive notice of their presence. It is also constitutional to restrict where certain high-risk sex offenders live and they may be prohibited from residing near schools, parks, or day care centers. Sex offenders who are on parole often have their location constantly monitored by GPS.

Some challenges to sex offender registration laws have been based on freedom of speech issues. However, as the 5th Circuit held recently in U.S. v. Arnold, sex offender registration and notification does not violate compelled speech.  “When the government, to protect the public, requires sex offenders to register their residence, it conducts an essential operation of government, just as it does when it requires individuals to disclose information for tax collection.”

However, the signs “Operation Boo” may present a different set of issues. In most cases, courts weigh the need of the government to control crime against the rights of sex offenders. As the attorney for the registered sex offenders, Janice Belucci, has pointed out, “there are no reports of a sexual assault upon a child who goes trick or treating.” San Diego County must make a reasonable argument that registered sex offenders are likely to lure children into their homes on Halloween. The court will also have to look at how dangerous these signs are to the sex offenders, who are forced to sit at home on Halloween with what amounts to a target on their houses.

How Can I Protect My Child from Sex Crimes on Halloween?

As the Rape, Abuse, and Incest National Network points out, children should avoid entering the home of any stranger on Halloween. It is better for them to trick or treat in a group and/or with adults. They should avoid “dark and gloomy” houses. They should also have a plan for how to reach parents in case of an emergency.

Following these types of safety tips may be better than singling out registered sex offenders and potentially making them targets. Even without the signs, sex offenders are not allowed to participate in trick-or-treating. Also, importantly, some people who may commit sex crimes have never been caught or punished—and there is no way to know who these people are. Be safe!