No First Amendment Right to Legal Name Change

In the Interest of CG, decided today by the Wisconsin Supreme Court, in an opinion by Justice Rebecca Grassl Bradley, joined by Chief Justice Annette Kingsland Ziegler, Justice Patience Roggensack, and Justice Brian Hagedorn, holds that there’s no First Amendment right to change one’s legal name. The case involves a sex offender, and sex offenders are barred by Wisconsin statute from such name changes; but the logic of the opinion would apply to name changes more broadly.

The court noted that Wisconsin law allows people to choose the names they use “in day-to-day affairs” (much as people often go by nicknames, which sometimes aren’t abbreviations of their legal names, or much as a considerable number of women use their maiden names in some situations and their married names in others). The petitioner argued that this wasn’t sufficient:

Nor does Ella’s ability to informally go by a female-sounding name cure this problem. There is a meaningful distinction between the ability to informally identify as Ella [the pseudonym the parties used for the petitioner] and the ability to legally identify as Ella. As discussed, this creates an unconstitutional disconnect between Ella’s ability to identify as a woman and the requirement to present legal documentation that does not match her true identity.

But the court concluded that was the most to which the petitioner was legally entitled (the opinions are long, so I offer only short excerpts, and omit the separate Eighth Amendment argument that the petition had made; read the full opinions for more):

Few court have addressed this issue. Among those that have, none have held that a prohibition on changing a person’s legal name, standing alone, implicates the right to free speech. If a person is free to use a different name in day-to-day affairs, statutory restrictions on changing a person’s legal name have not been understood to restrict speech or expression…. Inherent in each decision is the view that free speech is, generally, a negative right, like most rights secured by the Bill of Rights…. [This means], the State cannot be compelled to recognize a name and change its records…. “There is no constitutional or inherent right to compel legal sanction of a change of name, notwithstanding the right at common law to assume a new name so long as it is not for a fraudulent or illegal purpose.”

{States may have an affirmative duty to make certain places available for expressive conduct. Occasionally, advocates have tried to extend forum arguments to things produced by government, like license plates and driver’s licenses. These arguments have had limited success. Because Ella does not raise this argument, which borders on being an entirely different claim, we need not address it further.}

{Julia Shear Kushner, Comment, The Right to Control One’s Name, 57 UCLA L. Rev. 313, 337 (2009), argued viewpoint discrimination, in the context of legal name changes, could implicate the right to free speech. We need not examine this issue further because Wis. Stat. § 301.47(2)(a) does not allow sex offenders to petition for some legal name changes but not others.}

And the court also rejected the argument that having to “present[] legal documentation” in one’s various activities “constitutes compelled speech”: “identifying one’s self is an act, not a mode of expression.”

Justice Hagedorn concurred in the opinion as to the First Amendment analysis, and added:

[I]t is important to note the limited nature of our resolution of CG’s First Amendment challenge. CG has failed to prove that the prohibition on name changes for individuals on the sex offender registry infringes on CG’s First Amendment right to freedom of speech. In the absence of on-point case law, supportive historical evidence, or a compiling argument, we cannot conclude—for what would appear to be the first time in American history—that a person’s legal name contains expressive content subject to the First Amendment’s free speech protection. As the majority/lead opinion explains, the prohibition on changing a legal name does not prohibit a sex offender from saying or communicating a preferred name, nor does it mandate the communication of any particular content.

It is possible that some name-related claims could implicate a person’s free speech rights or trigger other constitutional protections. But based on the arguments and the precise claims before us, I am unpersuaded that the prohibition in Wis. Stat. § 301.47(2) on changing one’s name while subject to the sex-offender registry’s reporting requirements involving any expressive conduct triggering the First Amendment’s free speech protections….

Justice Ann Waslh Bradley, joined by Justices Rebecca Frank Dallet and Jill Karofsky, disagreed:

Conduct is expressive if it “possesses sufficient communicative elements to bring the First Amendment into play.” This inquiry is informed by whether conduct has the “intent to convey a particularized message.” Changing one’s name to reflect a certain personal identity fits the bill.

A name can convey a person’s family history, cultural heritage, or religious devotion. And a name most certainly can convey one’s gender identity. It is a fundamental way a person presents themselves to the world and is essential to a person’s identity. Calling a person by that person’s chosen name indicates respect for that person’s dignity and autonomy….

[T]he majority requires Ella to abandon her gender identity in any situation involving official documents. The court of appeals’ assertion, apparently adopted by the majority, that “Ella has the right to use whatever name she chooses,” rings hollow. Even if Ella can use her feminine name in daily life, her driver’s license, passport, applications for public assistance, and any other government document still requires her to use her former masculine name. In other words, the government requires that she express her fundamental identity as something she is not. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 951 (2019) (“Identity documents such as passports, driver’s licenses, and birth certificates can also play a meaningful role in a person’s conception of self.”)….

Thanks to Prof. Derek Muller for the pointer. Congratulations to Abigail Potts, who argued the case for the state.

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