Alabama defends law limiting where sex offenders can go

(CN) — An Alabama law restricting sex offenders’ movements is under legal scrutiny after a federal appeals court hearing Friday that could reshape how the state regulates their interactions with minors.

The case centers on a provision of the Alabama Sex Offender Registration and Community Notification Act that restricts where registrants can be present, potentially criminalizing routine activities like work, attending church or family gatherings. Amended in 2017, plaintiffs claim the provision redefined “reside” and “overnight visit,” imposing sweeping restrictions that could transform routine activities into criminal acts.

Three registrants sued the state in 2019, gaining a favorable judgment from Senior U.S. District Judge W. Keith Watkins, who found the law overly broad and unconstitutional. In his May 2024 order, Watkins emphasized that while the state has a legitimate interest in protecting the public, especially children, the law’s residency provision goes too far by infringing on fundamental constitutional rights without sufficient justification.

On appeal Friday, Assistant Attorney General Brenton Smith defended the statute, arguing that “the First Amendment does not entitle sex offenders to live with or near unrelated minors, nor does it entitle sex offenders to spend the night with minors outside their own nuclear families.”

Smith argued the law allows ordinary public activity and isn’t as restrictive as claimed.

“Ordinary conduct in worship, singing — whatever it may be at a revival — does not establish a residence at that place,” he argued, maintaining that sex offenders can still attend church and participate in public activities. Smith said plaintiffs have not demonstrated widespread constitutional violations.

“Given the 16,000 approximately sex offenders that live in Alabama, all of whom live somewhere … they have pointed to no prosecutions” that support their claims, Smith said, noting the state would be unlikely to seek prosecutions for “fleeting conduct” such as an unavoidable, brief encounter between a registrant and a minor where no criminal conduct occurred.

“So pumping gas next to them or going into a restaurant or passing them in a grocery store … no one would describe that as conducting a visit or even conducting presence with that person,” Smith said.

Representing the plaintiffs, attorney Kevin M. Lamb of WilmerHale painted a different picture.

“These individuals are being prevented from engaging in activity that is protected,” he argued, pointing to evidence suggesting the law could criminalize seemingly innocuous interactions, such as spending time at a relative’s house or being present at a public location when a minor is nearby.

One hypothetical raised during the hearing questioned whether working a night shift at a gas station could become a criminal act if a child briefly enters the premises.

U.S Circuit Judge Elizabeth L. Branch, a Donald Trump appointee, asked whether such a scenario could be interpreted as “an overnight visit with a child.”

Smith said there would be no intent or knowledge of wrongdoing, and the statute could not be violated by mere physical presence.

U.S. Circuit Judge Nancy G. Abudu — a Joe Biden appointee — followed up, asking if the state attorneys wouldn’t prosecute someone for that behavior.

“That is the case,” Smith confirmed. “That is the proper reading of the statute.”

But Lamb argued the law remains unconstitutionally broad and would burden more speech than necessary. Lamb suggested the state’s interpretation would prevent plaintiffs from attending political rallies, participating in faith communities and engaging in family gatherings.

“If an individual were present, for example, at a Black Lives Matter rally with the intent to be there three days in a row, all day, that person would have established a residence under the plain terms of this statute,” he said, noting it was deliberately amended in 2017 to expand its reach by removing previous limiting language about sleeping and living.

“The reason for the self-censorship of the registrants here is, frankly, in the face of this broad language, people are going to be prevented from engaging in activity that is protected,” he concluded.

The third panelist was U.S. Circuit Judge Embry Kidd, whose inquiries seemed to suggest skepticism about the state’s narrow interpretation of the law, implying the legislative amendment was deliberately designed to expand the statute’s reach and create a broader definition of “residing” for sex offenders. Kidd is also a Biden appointee.

“Didn’t the Alabama Legislature specifically amend the statute to remove ‘sleeps’ from the statute?” he asked. “Doesn’t that indicate that the legislature intended to broaden it beyond the federal SORNA, which has been found constitutional?”

Smith pushed back, explaining that removing the word “sleeps” was a modification to prevent someone from being overly technical about their residence. When pressed further by Kidd, Smith clarified he was not trying to establish sleeping as a bright-line rule.

“It’s just one factor that someone might consider in a totality of the circumstances analysis,” Smith said.

The panel did not indicate when it may rule on the case, but the court’s decision could have significant implications for Alabama’s approximately 16,000 registered sex offenders, potentially reshaping their ability to participate in public life while balancing public safety concerns.

In greater context, the state has made deliberate efforts in recent years to push the boundaries of criminal sentencing. In 2024, it became the first state to effectively employ nitrogen hypoxia as an execution method. Just Thursday, Attorney General Steve Marshall advocated for capital punishment for child sex offenses amid emerging allegations of a child sex ring in Bibb County.

After similar proposals in other states, the U.S. Supreme Court in 2008 ruled the death penalty cannot be applied to crimes that do not involve death, but Marshall said it was time to challenge the court’s analysis.

In a separate case in April 2025, an 11th Circuit panel struck down an Alabama law preventing convicted sex offenders from cohabitating with minors, a restriction the court determined strips parents of their ability to stay overnight with their children, even if their crimes did not involve minors.

Marshall’s office did not timely respond to additional requests for comment Friday.

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