Doe 1 et al v. Strange et al(JOINT ASSIGN)

Filing 125

MEMORANDUM OPINION AND ORDER: ORDERED that Defendants' motion to dismiss (Doc. # 87 ) is GRANTED in part and DENIED in part. It is further ORDERED as follows: 1. Defendants' motion to dismiss is DENIED as to Count 1. 2. Defendants' motion to dismiss is GRANTED as to Count 2. Count 2 is DISMISSED without prejudice. 3. Defendants' motion to dismiss is GRANTED in part and DENIED in part as to Count 3. The motion to dismiss is GRANTED as to Plaintiffs' claim that the res idency restriction is unconstitutionally vague, Ala. Code 15-20A-11(a)(e), (g). The motion is also GRANTED as to Plaintiffs' vagueness challenge to the residency, employment, school, and internet reporting requirements, id. 15-20A-(a)(5)(9), (1 8), 15-20A-10(a)(c), (e). These portions of Count 3 are DISMISSED without prejudice. The motion is DENIED as to the claim that the employment restriction is unconstitutionally vague, id. 15-20A-13(b), (d), (f). 4. Defendants' motion to dismiss i s DENIED as to Count 4. 5. Defendants' motion to dismiss is DENIED as to Count 5. 6. Defendants' motion to dismiss is GRANTED as to Count 6. Count 6 is DISMISSED without prejudice. 7. Plaintiffs' Motion for Leave to File Third Amended Complaint (Doc. # 118 ) and their Amended Motion for Leave to File Third Amended Complaint (Doc. # 119 ) are DENIED at this time without prejudice. Signed by Chief Judge William Keith Watkins on 3/14/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHN DOE #1, et al.,
Plaintiffs,
v.
STEVEN T. MARSHALL,
Attorney General of the State of
Alabama in his official capacity, et
al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CASE NO. 2:15-CV-606-WKW
[WO]

MEMORANDUM OPINION AND ORDER
With an eye toward protecting its citizenry from recidivist sex offenders,
Alabama imposes a registration scheme on all state residents who have been
convicted of certain sex crimes. The Alabama Sex Offender Registration and
Community Notification Act (“ASORCNA,” or the “Act”), Ala. Code § 15-20A-1
et seq., is one of the most “comprehensive, debilitating” sex offender statutes in the
country. McGuire v. Strange, 83 F. Supp. 3d 1231, 1236 (M.D. Ala. 2015).
Protecting the vulnerable from the depredations of sexual predators is a laudable
legislative goal—this much is beyond cavil. But the State, in setting out to achieve
this goal, must stay within the boundaries of liberty and dignity enshrined in our
constitutional tradition.

Plaintiffs, five anonymous ASORCNA registrants,

brought this action to challenge the portions of the Act that allegedly trespass on
their constitutional protections.
Before the court is the motion to dismiss filed by Defendants Steven
Marshall, Charles Ward, Hal Taylor, John Richardson, and Stan Stabler
(collectively, the “State”).1 (Doc. # 87.) The State seeks, for the second time, total
dismissal of Plaintiffs’ challenge to ASORCNA.

Upon consideration of the

pleadings, the arguments of counsel, and the relevant law, the motion is due to be
granted in part and denied in part. Given this resolution, Plaintiffs’ motions for
leave to file a third amended complaint are due to be denied at this time.
(Docs. # 118, 119.)
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343,
and 2201. The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the sufficiency of the complaint against the legal standard
articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that
1

By operation of Federal Rule of Civil Procedure 25(d), Steven Marshall has been
“automatically substituted as a party” for the former Attorney General, Luther Strange; Charles
Ward for John Richardson in his official capacity as Director of the Alabama Department of
Public Safety; and Hal Taylor for Stan Stabler in his official capacity as Secretary of ALEA.
(Doc. # 122.)
2

the complaint must include “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a
motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged
in the complaint as true and construe them in the light most favorable to the
plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). The
court need not, however, accept mere legal conclusions as true. Id. at 1325.
To survive a 12(b)(6) motion, the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The complaint is facially plausible when “the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
III. BACKGROUND
The facts, procedural history, and statutory scheme at issue were spelled out
in depth in the Order disposing of Defendants’ first motion to dismiss.
(Doc. # 51.) The court will not rehash all the facts of this case, which, save for a
few exceptions to be discussed below, remain largely the same. After the State’s
motion to dismiss the first amended complaint was granted in part and denied in
part, Plaintiffs obtained leave to again amend their complaint. Plaintiffs filed their
second amended complaint on August 22, 2016, adding three claims to the three
3

that survived Defendants’ first motion to dismiss. (Doc. # 81.) Four weeks later,
on September 12, 2016, Defendants filed their second Rule 12(b)(6) motion to
dismiss, asking the court to dismiss all six counts of the operative complaint.
(Doc. # 87.)
While this second motion to dismiss awaited resolution, the statutory
landscape shifted dramatically.

On March 14, 2017, the Alabama Senate

introduced SB 301, a far-reaching rewrite of the challenged ASORCNA
provisions. Once it passed both chambers of the Alabama Legislature, the bill was
christened Alabama Act No. 2017-414 (the “Amendment”) and signed into law by
Governor Kay Ivey.

The parties filed supplemental briefs regarding the

Amendment’s impact on the State’s pending motion to dismiss. (Docs. # 110, 113,
114.)
A brief overview of these statutory and factual changes is in order before
addressing the parties’ legal arguments.
A.

The Challenged Statutory Provisions

ASORCNA inserts the State into various aspects of registrants’ daily lives.
The current version of ASORCNA applies to adult offenders convicted of any of
thirty-three infractions designated as sex offenses under Alabama law.

Ala.

Code § 15-20A-5. It also makes its provisions applicable to any adult offender
convicted in another jurisdiction of a crime that, “if it had been committed in
4

[Alabama] under the current provisions of law, would constitute” an enumerated
offense. Id. § 15-20A-5(35). The statute applies retroactively such that it sweeps
offenders under its control regardless of when the conviction occurred or the duty
to register arose.

Id. § 15-20A-3(a).

Unless they are relieved from its

requirements due to medical need or through one of the Act’s other narrow
exceptions,2 qualifying offenders are subject to the statute’s requirements for life.
Id. § 15-20A-3(b).
1.

Duty to Register and Reporting Requirements

A sex offender must register with certain law enforcement agencies upon (1)
release from incarceration (or at the time of conviction if not incarcerated), or (2)
upon entering the state.

Id. § 15-20A-10.

ASORCNA requires an in-person

appearance before local law enforcement of the county in which the sex offender
resides, accepts employment, or attends school.

Id.

When registering, sex

offenders must provide law enforcement with their residential address, the name
and address of their employer and/or the school they attend, the license number
and registration for any vehicle they own, and all telephone numbers they use.
Id. § 15-20A-7(a)(4)–(8). Registrants must also provide information relating to
their internet communications.

Namely, email addresses, instant-message

2

For example, ASORCNA offers some limited relief for juvenile offenders, Ala.
Code § 15-20A-28, and for those offenders whose crimes were a result of their victim’s age, if
the offender was less than five years older than his victim, id. § 15-20A-24.
5

usernames, “designations or monikers used for self-identification in Internet
communications or postings,” and “any and all Internet service providers used by
the sex offender” must be reported. Id. § 15-20A-7(a)(9), (18). The Amendment
carves out a small exception: An internet identifier need not be reported if “used
exclusively in connection with a lawful commercial transaction.” Id. § 15-20A7(a)(9). ASORCNA does not define “lawful commercial transaction,” or how such
internet use differs from a registrant’s typical internet access.
Registrants have an enduring obligation to update their registration, in
person, at the time of any change in residence, employment, or educational
enrollment.

Id. § 15-20A-10(b), (c).

Changes to phone numbers, internet

identifiers, or internet service providers (“ISPs”) may be reported in person, online,
or over the telephone, “as required by the local law enforcement agency.” Id. § 1520A-10(e). All updates must be made “immediately,” which the Act defines as
within three days.

Id. § 15-20A-4(9).

ASORCNA further requires homeless

registrants to report in person to local law enforcement on a weekly basis.
Id. § 15-20A-12(b).
Law enforcement uses this information to establish a registry, which it
makes available to the public.3 Id. § 15-20A-8. ASORCNA also requires local

3

Certain information, such as email addresses, internet identifiers, and ISPs, is not
published. Ala. Code § 15-20A-8(b).
6

law enforcement to notify the community of a sex offender’s presence by
distributing flyers to nearby residents. Id. § 15-20A-21. If a registrant intends to
leave his county of residence for a period of three or more consecutive days, he
must complete a travel permit4 request and provide the details of his travel plans.
Id. § 15-20A-15.
2.

Residency and Employment Restrictions

ASORCNA strictly limits the areas in which sex offenders may live and
work. The residency provision proscribes the establishment or maintenance of a
residence within 2,000 feet of a school, childcare facility, or resident camp. 5
Id. § 15-20A-11(a). ASORCNA also prohibits sex offenders from establishing or
maintaining a residence within 2,000 feet of the property on which a victim’s
immediate family members reside. Id. § 15-20A-11(b). The 2,000-foot exclusion
zone6 is measured in a straight line from nearest property line to nearest property

4

The Amendment rebranded ASORCNA’s travel permits as “travel notification
document[s].” Ala. Code § 15-20A-15. The change appears to be entirely semantic: On pain of
felony, a registrant is not permitted to leave his county for more than three days unless he obtains
and completes a notification document. Id. It is not clear how this provision meaningfully
differs from a permitting system.
5

“[A] resident camp facility includes any place, area, parcel, or tract of land which
contains permanent or semi-permanent facilities for sleeping owned by a business, church, or
nonprofit organization used primarily for educational, recreational, or religious purposes for
minors and the location of the resident camp has been provided to local law enforcement.
Resident camp does not include a private residence, farm, or hunting or fishing camp.” Ala.
Code § 15-20A-11(a).
6

The State quibbles with the phrase “zone of exclusion,” claiming it does not accurately
describe the zones from which registrants are excluded from residence and employment.
7

line. Id. § 15-20A-11(h). Those sex offenders who were released or convicted and
established a residence within an exclusion zone prior to ASORCNA’s effective
date were not required to relocate. See, e.g., id. § 15-20A-11(a) (“No adult sex
offender shall . . . maintain a residence after release or conviction . . . within 2,000
feet of the property . . . .” (emphasis added)).

Plaintiffs contend that the

geographical residency restrictions preclude registrants from residing in over
eighty percent of the available housing in Montgomery, Alabama.
In addition to imposing geographical limitations on living arrangements,
ASORCNA prevents sex offenders from residing with certain minor children (the
“minor-cohabitation rule”). No sex offender may “reside or conduct an overnight
visit with a minor.” Id. § 15-20A-11(d). The Act defines “overnight visit” as
“[a]ny presence between the hours of 10:30 p.m. and 6:00 a.m.” Id. § 15-20A4(14). The minor-cohabitation rule generally does not apply if the sex offender is
the parent, grandparent, sibling, stepparent, or stepsibling of the minor. Id. § 1520A-11(d). Under certain circumstances in which the sex offender’s victim was a
child, however, even these familial exceptions do not apply.

Id. § 15-20A-

11(d)(1)–(5).

(Doc. # 110-2, at 1.) For purposes of this Opinion, the court is satisfied that “zone of exclusion”
accurately and appropriately refers to such areas.
8

Deciphering the statutory meaning of “residence” is no small feat—it takes
four statutory cross-references to pin down the term’s definition.7 “Residence” is
defined as “[a] fixed residence . . . or other place where the person resides,
regardless of whether the person declares or characterizes such place as a
residence.”

Id. § 15-20A-4(21).

ASORCNA then defines the operative term

“reside” as “be[ing] habitually or systematically present at a place,” a matter which
“shall be determined by the totality of the circumstances.” Id. § 15-20A-4(20). In
addition to this catch-all, the Act specifies three circumstances under which a
7

Set out in full, the four relevant provisions read as follows:

(6) FIXED RESIDENCE. A building or structure, having a physical address or
street number, that provides shelter in which a person resides.
….
(14) OVERNIGHT VISIT. Any presence between the hours of 10:30 p.m. and
6:00 a.m.
...
(20) RESIDE. To be habitually or systematically present at a place. Whether a
person is residing at a place shall be determined by the totality of the
circumstances, including the amount of time the person spends at the place and
the nature of the person’s conduct at the place. The term reside includes, but is
not limited to, spending more than four hours a day at the place on three or more
consecutive days; spending more than four hours a day at the place on 10 or more
aggregate days during a calendar month; or spending any amount of time at the
place coupled with statements or actions that indicate an intent to live at the place
or to remain at the place for the periods specified in this sentence. A person does
not have to conduct an overnight visit to reside at a place.
(21) RESIDENCE. A fixed residence as defined by Section 15-20A-4 or other
place where the person resides, regardless of whether the person declares or
characterizes such place as a residence.
Ala. Code § 15-20A-4.
9

person resides at a place: first, if the person spends four hours there on three
consecutive days; second, if the person spends four hours there on ten days out of a
month; and third, if the person spends any length of time there and has indicated an
intent to remain for the named periods of time. Id. These three circumstances, as
the Act makes clear, are illustrations rather than limitations of the definition. Id.
Should a registrant fail to notify law enforcement or obtain a travel permit prior to
“spend[ing] three or more consecutive days” away from his residence, he will be
deemed to have changed residences and will be required to report the change to
law enforcement. Id. §§ 15-20A-11(e)(2), 15-20A-10(e)(1).
The statute does allow for a limited reprieve from these restrictions. As of
August 1, 2017, ASORCNA offers registrants a safe harbor in the form of
residential preapproval. Id. § 15-20A-11(g). Should law enforcement preapprove
an address as ASORCNA compliant before a registrant moves in, his residence
there will not violate the residential-exclusion rules. Id. Registrants also may
petition a state circuit court for relief based on terminal illness, permanent
immobility, or other debilitating medical condition. Id. § 15-20A-23(a). To grant
this relief, the state court must find that the petitioner does not pose a substantial
risk of engaging in future sexual misconduct. Id. § 15-20A-23(g).
The employment provision, like the residency provision, imposes a
geographical limitation on sex offender activity. No sex offender may “accept or
10

maintain employment or a volunteer position” within 2,000 feet of a school or
childcare facility. Id. § 15-20A-13(b). Registrants also may not accept or maintain
employment within 500 feet of a playground, park, or athletic facility with a
principal purpose of serving children. Id. § 15-20A-13(c). The exclusion zone is
measured from nearest property line to nearest property line. Id. § 15-20A-13(h).
This provision further precludes sex offenders from working at any facility
or organization that provides services primarily to children. Id. § 15-20A-13(a).
Plaintiffs allege, with respect to the Montgomery area, that ASORCNA’s
employment restrictions render eighty-five percent of jobs unavailable to sex
offenders. These employment restrictions apply regardless of whether the sex
offender’s victim was a minor child.
3.

Branded Identification Requirement

To ensure easy identification of registrants, ASORCNA requires all sex
offenders to carry branded identification cards. Specifically, the statute provides
that a sex offender must “obtain . . . and always have in his or her possession, a
valid driver license or identification card issued by the Alabama State Law
Enforcement Agency.”

Id. § 15-20A-18(a).

These registrant-specific driver’s

licenses must “bear[ ] a designation that enables law enforcement officers to
identify the licensee as a sex offender.” Id. § 15-20A-18(b), (c). The Alabama
Legislature delegated to the Secretary of the Alabama Law Enforcement Agency
11

(“ALEA”) the exclusive power “to promulgate any rules as are necessary to
implement and enforce” the Act. Id. § 15-20A-44(c). The ALEA, in turn, has
required the face of the identification cards to bear the inscription “CRIMINAL
SEX OFFENDER” in bold, red letters. Registrants must also relinquish any other
identification previously issued to them “by a state motor vehicle agency” that
does not bear the sex offender inscription. Id. § 15-20A-18(d).
4.

Penalties for ASORCNA Violations

ASORCNA’s various duties and limitations are enforced under penalty of
criminal prosecution. A violation of its requirements may constitute a Class C
felony.

See, e.g., id. § 15-20A-11(i).

The statute does impose a scienter

requirement, however, such that registrants are only liable for knowing violations
of any provision. See id.
B.

The Parties
1.

Plaintiffs

Plaintiffs John Doe 1, John Doe 3, John Doe 7, John Doe 9, and John Doe
10 (“Doe 1,” “Doe 3,” etc.) wish to proceed anonymously in this action; their
hopscotch numbering reflects former Plaintiffs who have since been dropped from
the case. (See Doc. # 41.) Each Plaintiff’s experience as an ASORCNA registrant
has already been summarized, except for Doe 10, who was joined as a Plaintiff in
the second amended complaint. (Doc. # 51, at 10–17; see Doc. # 81.)
12

Doe 10 is an adult ASORCNA registrant living within the Northern District
of Alabama. A long-time drug addict, Doe 10 visited his children at their mother’s
house in 1990 while he was under the influence of drugs. When the children’s
mother refused entry to Doe 10, he kicked in the door and got into a fight with her.
The police were called, Doe 10 was arrested and charged, and he ultimately pled
guilty to sexual abuse in the second degree, a misdemeanor. Doe 10 was sentenced
to twelve months’ imprisonment and required to register under ASORCNA’s
predecessor statute, the now-repealed Alabama Community Notification Act.
After unsuccessfully fighting his demons for two decades, Doe 10 decided to
seek professional help for his addiction. He received that help in 2009, in the form
of a twelve-month, free-of-charge inpatient program in Kansas.8 On his return to
his hometown in Alabama, Doe 10 was arrested for, and convicted of, a felony
violation of ASORCNA: He had failed to report to local law enforcement his
relocation from Alabama to Kansas.
Once he served his time, Doe 10 resumed residency with his mother in an
ASORCNA-compliant zone. But the city soon condemned their home, and Doe
10’s mother could not find affordable housing outside of ASORCNA’s zones of
exclusion. Doe 10 was left homeless, subject to the weekly reporting requirement,
until he found temporary housing in an ASORCNA-compliant area in late 2015.

8

Since completing the program, Doe 10 claims he has not used drugs or alcohol.
13

After failing to report his updated address within the three-day period mandated by
ASORCNA, Doe 10 was charged with violating the Act’s immediate in-person
reporting requirement. After pleading guilty to this violation, Doe 10 finally found
permanent housing in February 2016 that was approved by local law enforcement
as ASORCNA compliant—though this approval may have been accidental, owing
to a nearby, decades-old childcare facility. Thus, Doe 10 may currently be living
in a zone of exclusion.
Doe 10 enjoys traveling, especially on fishing trips. But his friends often
schedule their fishing trips on less than a day’s notice, forcing Doe 10 to decline
invitations for fear of violating ASORCNA’s requirement of immediate in-person
reporting of his travel. Similarly, Doe 10’s girlfriend will soon retire from her job,
and he hopes to travel with her when she does.

Doe 10’s precarious living

situation also puts him at risk of homelessness and the weekly reporting
requirement, should local law enforcement revoke the approval of his residence.
2.

Defendants

Plaintiffs bring their first five claims against Defendants Steven Marshall,
Charles Ward, and Hal Taylor in their official capacities as Attorney General of the
State of Alabama, Director of Alabama Department of Public Safety, and Secretary

14

of ALEA, respectively.9 Plaintiffs’ sixth claim seeks damages against Defendants
John Richardson and Stan Stabler, former secretaries of ALEA, in their individual
capacities.
C.

The Causes of Action
Plaintiffs’ second amended complaint names six causes of action against

Defendants. They allege as follows:
1.

The residency restriction violates Plaintiffs’ substantive due
process right to family association, see Ala. Code § 15-20A11(a)–(e), (g);

2.

ASORCNA creates an irrebuttable presumption of
dangerousness in violation of the Fourteenth Amendment
through its restrictions on residency, id. § 15-20A-11(d),
employment, id. § 15-20A-13(a)–(b), and travel, id. § 15-20A15(a), (b), (d); the weekly reporting requirement for the
homeless, id. § 15-20A-12(b); and the community-distribution
provision, id. § 15-20A-21(b), (d);

3.

The residency exclusion zones, id. § 15-20A-11(a)–(e), (g),
employment exclusion zones, id. § 15-20A-13(b), (d), (f), and
reporting requirements, id. §§ 15-20A-7(a)(5)–(9), (18); 1520A-10(a)–(c), (e), are void for vagueness;

4.

The branded-identification requirement
compels speech, id. § 15-20A-18(d);

5.

The reporting requirements are overbroad in violation of the
First Amendment, id. §§ 15-20A-7(a)(8)–(9); 15-20A-10(e);
and

9

unconstitutionally

As explained above, supra note 1, Plaintiffs’ operative complaint named as defendants
the former Attorney General of the State of Alabama, Luther Strange; the former Director of the
Alabama Department of Public Safety, John Richardson; and the former Secretary of ALEA,
Stan Stabler, in their official capacities. Those officials’ successors have been “automatically
substituted as a party.” Fed. R. Civ. P. 25(d). (Doc. # 122.)
15

6.

Defendants Richardson and Stabler are liable in their individual
capacities under 42 U.S.C. § 1983 because their use of the
“CRIMINAL SEX OFFENDER” inscription violates Plaintiffs’
clearly established constitutional rights.

Counts 1, 3, and 4 are substantially similar to claims in Plaintiffs’ first amended
complaint that survived the State’s first motion to dismiss.10 (See Doc. # 39.)
Counts 2, 5, and 6 were newly alleged in the second amended complaint.
(Doc. # 81.)
IV. DISCUSSION
Defendants seek dismissal of the second amended complaint in its entirety.
Each count of the complaint will be analyzed in turn to determine whether
Plaintiffs have stated a cognizable claim. More broadly, the court divides its
analysis by the constitutional protection claimed by Plaintiffs.
A.

Fourteenth Amendment Claims
The Due Process Clause of the Fourteenth Amendment protects against state

action that “deprive[s] any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. There are two sides to this constitutional
promise, one procedural and one substantive. See Doe v. Moore, 410 F.3d 1337,
1342 (11th Cir. 2005). Procedural due process “guarantees that a state will not
deprive a person of life, liberty, or property without some form of notice and

10

As will be discussed below, Count 3 differs slightly from its analogue in the first
amended complaint.
16

opportunity to be heard.”

Id. (citing Hamdi v. Rumsfeld, 542 U.S. 507, 533

(2004)). Substantive due process, on the other hand, “protects fundamental rights
that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor
justice would exist if they were sacrificed.’” Id. (quoting Palko v. Connecticut,
302 U.S. 319, 325, 326 (1937)). The first count of Plaintiffs’ complaint implicates
substantive due process; the second and third counts challenge the constitutional
sufficiency of ASORCNA’s procedures.
1.

Count I: Family Association

The protection of substantive due process reaches its apogee in the domain
of the family. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“[O]ur laws and
tradition afford constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education.”). In
the touchstone case of Moore v. City of East Cleveland, the Supreme Court
recognized a fundamental right to associate with extended family. 431 U.S. 494,
504–05 (1977). Owing to its fundamental nature, a state may only infringe on this
right if it narrowly tailors the restriction to serve a compelling governmental
interest. Reno v. Flores, 507 U.S. 292, 302 (1993).
The State argues that the residency restriction does not encroach on any
fundamental right and that, alternatively, the restriction is narrowly tailored so as
to survive judicial review. To this end, the State tries to resurrect three arguments
17

it made in its original motion to dismiss. These arguments, all of which were
rejected (Doc. # 51, at 33–40), remain unconvincing and merit no further analysis.
The State makes two additional arguments, but neither holds water.
First, the State alleges error in the court’s “disregard[ ] [of] the role that sex
offenders’ ‘transgressions’ play in [the fundamental-right] analysis.” (Doc. # 87,
at 18.) After all, reasons the State, why else would the Eleventh Circuit in Doe v.
Moore have spent so much time explaining that there is no fundamental right to be
free of registration requirements? See 410 F.3d 1337.
To be sure, the Eleventh Circuit in Moore did hold that sex offenders enjoy
no fundamental right to be free of registration requirements. Id. at 1344–45. In
that case, the court heard a challenge to the Florida analogue of ASORCNA. The
plaintiffs, a collection of sex offenders in that state, framed the law’s registration
requirement as violating generalized fundamental rights, including the right to
family association. Looking to the statutory text, the Eleventh Circuit refocused
the inquiry: Rather than the litany of generalized rights claimed by the plaintiffs,
the court determined that the sole issue was “the right of a person, convicted of
‘sexual offenses,’ to refuse subsequent registration.” Id. at 1344. Moore, in other
words, did not deal with “the private realm of family life which the state cannot
enter,” Prince v. Massachusetts, 321 U.S. 158, 166 (1944); rather, it dealt with an
alleged right of sex offenders to be unburdened by registration requirements.
18

Therefore, the court’s holding did not limit sex offenders’ right of family
association. See also Waldman v. Conway, 871 F.3d 1283, 1292–93 (11th Cir.
2017) (same).
“[C]rafting a ‘careful description of [Plaintiffs’] asserted right’” reveals the
flaws in the State’s reasoning.11 Moore, 410 F.3d at 1343 (quoting Flores, 507
U.S. at 302). Plaintiffs claim that ASORCNA violates their specific right to family
association; they do not claim a violation of the sort of generalized rights as
alleged by the Moore plaintiffs. Plaintiffs’ status as sex offenders does not receive
“equal billing” in this analysis, as the State urges it should (Doc. # 87, at 18),
because they seek only to assert their right to live with extended family—a right
enshrined as fundamental by the Supreme Court in City of East Cleveland. There
is no support in that case or its progeny for an “except-for-sex-offenders” rule, and
the court declines to create such an exception out of whole cloth on a motion to
dismiss.
Second, the State suggests that the court “overlooked” its argument that the
burden on Plaintiffs’ familial-association rights is only incidental to the State’s
11

Where a party “seek[s] recognition of a right neither mentioned in the Constitution nor
encompassed within the reach of the Supreme Court’s existing fundamental-right precedents,” a
two-step analysis requires the court carefully to describe the asserted right and then determine
whether that right merits constitutional protection. Williams v. Att’y Gen. of Ala., 378 F.3d 1232,
1239 (11th Cir. 2004) (citing Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). In this
case, such an analysis is unnecessary because East Cleveland held fundamental the right to
family association that Plaintiffs claim is infringed upon by ASORCNA. See Ala. Code § 1520A-11(d) (prohibiting residence with minors outside of a narrow group of enumerated family
members).
19

legitimate regulation of sex offenders. (Doc. # 87, at 19.) The State offers, as
ASORCNA’s saving grace, Plaintiffs’ ability to enjoy “unlimited visits” with
minor children and overnight stays with relatives above the age of majority.
(Doc. # 87, at 19.) By virtue of these visits, the State argues that ASORCNA
“does not ‘slic[e] deeply into the family itself.’” (Doc. # 87, at 19 (quoting City of
East Cleveland, 431 U.S. at 498 (plurality opinion)).)
But City of East Cleveland itself dooms this argument. The Supreme Court
there heard a challenge to a city ordinance that prohibited the cohabitation of
certain extended family members.

Like ASORCNA, the ordinance neither

separated nuclear families nor limited day visits by prohibited residents. Compare
431 U.S. at 496 n.2 with Ala. Code § 15-20A-11(d). Yet the Supreme Court,
reasoning that the housing regulation “slic[ed] deeply into the family itself,” struck
down the ordinance. 431 U.S. at 498 (plurality opinion).
The State now uses City of East Cleveland’s language to bless the same sort
of restricted family living arrangements the Supreme Court held unconstitutional.
True, the Supreme Court in City of East Cleveland did not specifically discuss the
plaintiff’s “unlimited” ability to visit her “minor distant relatives” (Doc. # 87, at
19)—though the same was just as true for the plaintiff there as it is for the sex
offenders here. But this is because the Court had no need to do so: It would be
strange indeed if a law that infringed on the fundamental right to live with family
20

members could be saved by occasional—or even unlimited—day visits.
Accordingly, the State’s motion to dismiss Count 1 will be denied.
2.

Count II: Irrebuttable Presumption

Plaintiffs claim that ASORCNA conclusively determines that registrants
pose a threat to society. Because it does so without giving registrants a chance to
prove their non-dangerous nature, Plaintiffs argue that the law violates the
Fourteenth Amendment’s guarantee of due process of law. Specifically, Plaintiffs
invoke the irrebuttable-presumption doctrine as articulated in Vlandis v. Kline, 412
U.S. 441 (1973).
At the doctrine’s zenith, the Supreme Court struck down statutes that
imposed a burden on a class of people without providing for some determination of
individual merit or demerit. Turner v. Dep’t of Emp’t Sec., 423 U.S. 44 (1975)
(per curiam); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Vlandis,
412 U.S. 441.

Over the years, the Court has walked the doctrine back in

recognition of its potential for abuse. See, e.g., Weinberger v. Salfi, 422 U.S. 749,
772 (1975) (explaining that the doctrine, if overextended, would turn “into a virtual
engine of destruction for countless legislative judgments which have heretofore
been thought wholly consistent with the Fifth and Fourteenth Amendments to the
Constitution”).

But the judicial retreat “has not been wholesale,” Martin v.

Houston, 176 F. Supp. 3d 1286, 1305 (M.D. Ala. 2016), and the doctrine’s
21

viability remains a topic of hot debate. See 3 Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law § 17.6 (5th ed. 2017) (casting the doctrine
as “a conceptually confused, if not dishonest, method of justifying independent
judicial review of legislative classifications”). Thankfully, binding precedent from
the Supreme Court and Eleventh Circuit obviates the need for a deep dive down
the irrebuttable-presumption rabbit hole. See Conn. Dep’t of Pub. Safety v. Doe
(Connecticut DPS), 538 U.S. 1 (2003); Moore, 410 F.3d 1337.
In Connecticut DPS, the Supreme Court heard a challenge to Connecticut’s
sex offender registration law. 538 U.S. 1. Connecticut operated a sex offender
registry much like Alabama’s, under which the state publicly posted registrants’
personal information. A convicted sex offender brought a challenge to the law,
claiming that he was entitled to a pre-publication hearing to determine whether he
posed a danger to the community. The trial and appellate courts both ruled that, by
failing to provide for such a hearing, Connecticut’s sex offender law violated the
Due Process Clause. The Supreme Court reversed, explaining that the plaintiff
was not entitled to a hearing because “the fact that [he] seeks to prove—that he is
not currently dangerous—is of no consequence under Connecticut’s [sex offender
law].” Id. at 7. Rather, “the law’s requirements turn on an offender’s conviction
alone—a fact that a convicted offender has already had a procedurally safeguarded
opportunity to contest.” Id. As the Court put it, “Plaintiffs who assert a right to a
22

hearing under the Due Process Clause must show that the facts they seek to
establish in that hearing are relevant under the statutory scheme.” Id. at 8.
Two years later, the Eleventh Circuit read Connecticut DPS to preclude a
procedural due process challenge to Florida’s sex offender law. Moore, 410 F.3d
at 1342, 1342 n.3. The plaintiffs in Doe v. Moore argued that, because Florida law
required sex offenders to register regardless of their risk of re-offending, the law
“creat[ed] an irrebuttable presumption of dangerousness” in violation of the Due
Process Clause. Id. at 1342 n.3. The Eleventh Circuit rejected this argument as
“foreclosed” by Connecticut DPS. Id. at 1342. Florida’s sex offender law—just
like Connecticut’s—“d[id] not turn on the dangerousness of the offender, [but]
merely the fact that he or she was convicted.” Id. at 1342 n.3. Therefore, it did not
offend due process to require registration without giving the offenders a chance to
be heard.
So too here.

Like its Connecticut and Florida analogues, ASORCNA

requires registration of “every adult sex offender convicted of a sex offense.” Ala.
Code § 15-20A-3(a). In an effort to distinguish ASORCNA from the laws upheld
in Connecticut DPS and Doe v. Moore, Plaintiffs point to the Act’s legislative
findings, arguing that Alabama’s “[l]egislature explicitly cites (purported)
dangerousness of all sex offenders as the primary purpose for all ASORCNA
registration, restrictions, and requirements.” (Doc. # 94, at 7 (emphasis added).)
23

But this argument conflates two distinct questions: Why did the legislature enact
ASORCNA, and which Alabamians must comply with its requirements? Even if
the Act’s legislative findings reflected a presumption of danger, that presumption
would be entirely collateral to the question of the Act’s applicability. And because
the question of applicability turns solely on conviction of a sex crime, the fact that
Plaintiffs would seek to establish at a hearing—their non-dangerousness—plainly
is not relevant to the statutory scheme. See Connecticut DPS, 538 U.S. at 8.
Therefore, the State’s motion to dismiss Count 2 is due to be granted.
3.

Count III: Void for Vagueness

Plaintiffs claim that ASORCNA’s residency exclusion zones, employment
exclusion zones, and reporting requirements are void for vagueness. Vague laws
trespass on the constitutional guarantee of due process. See Johnson v. United
States, 135 S. Ct. 2551, 2556 (2015). A statutory provision is void for vagueness if
it either (1) fails to provide people of ordinary intelligence with fair notice of what
conduct it proscribes, or (2) is so unclear that it authorizes or encourages
discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008).
Prior to the enactment of Alabama Act No. 2017-414, the court found that
Plaintiffs had stated a claim with respect to their vagueness challenges to the
residency and employment restrictions. (Doc. # 51, at 21–28.)

This decision

rested on registrants’ inability to determine whether a certain property was
24

ASORCNA compliant, and on the potential for disparate readings (and therefore
disparate enforcement) of the Act’s loosely defined provisions.

Because the

Amendment assuages these concerns of fair notice and discriminatory
enforcement,

Plaintiffs’

vagueness

challenge

to

ASORCNA’s

residency

restrictions is due to be dismissed. However, because the Amendment does not
sufficiently clarify the employment restrictions, Defendants’ motion to dismiss is
due to be denied as to that portion of Count 3.
Plaintiffs can no longer state a claim that ASORCNA fails to put registrants
of ordinary intelligence on notice of its residential zones of exclusion. Plaintiffs
point to the web of statutory cross-references that comprises the definition of
“residence,” claiming that their interpretation is a “baffling . . . impossible
exercise.” (Doc. # 114, at 6.) Baffling though it may be, the statutory complexity
alone does not compel a finding of vagueness.12 And to the extent the heightened
standard of review for a vagueness challenge to criminal laws could make mere
complexity into a fatal flaw, the preapproval provision ensures that registrants have
fair notice of their exclusion from certain properties. Cf. Vill. of Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (justifying the lessstringent test for vagueness of economic regulations by explaining that “[t]he

12

If it did, the Internal Revenue Code would have been invalidated long ago. See 26
U.S.C. § 1 et seq.
25

regulated enterprise may have the ability to clarify the meaning of the regulation
by its own inquiry”).
A law is less likely to fail for vagueness if it offers some procedure to clarify
its reach.

Where such a clarifying mechanism is available, even a clumsy,

imprecisely drafted law can survive a vagueness challenge. See, e.g., id.; Arnett v.
Kennedy, 416 U.S. 134, 160 (1974) (rejecting vagueness challenge to a statute and
highlighting availability of advisory opinions to offer guidance on statutory
meaning); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548,
580 (1973) (“It is also important in this respect that the Commission has
established a procedure by which an employee in doubt about the validity of a
proposed course of conduct may seek and obtain advice from the Commission and
thereby remove any doubt there may be as to the meaning of the law, at least
insofar as the Commission itself is concerned.”); Mason v. Florida Bar, 208 F.3d
952, 959 n.4 (11th Cir. 2000) (“[T]he availability of advisory opinions to gauge the
application of [the challenged enactment] to specific situations bolsters its
validity.”). To be sure, preclearance is no panacea; “such a procedure lessens the
amount of precision in definition required by due process,” but it does not
eliminate the requirement altogether. Am. Dog Owners Ass’n v. Dade Cty., 728 F.
Supp. 1533, 1540 (S.D. Fla. 1989). But courts broadly recognize that clarifying

26

mechanisms help solve problems of fair notice. E.g., Hoffman Estates, 455 U.S. at
498.
ASORCNA’s new preapproval provision pushes the law across the
constitutional line. It offers registrants a resource to determine the boundaries of
the zones of exclusion—and in so doing, it corrects one of the Act’s glaring
infirmities. See Doe v. Snyder, 101 F. Supp. 3d 672, 684 (E.D. Mich. 2015)
(finding that Michigan’s sex offender registration law failed to put registrants on
fair notice, in part because registrants lacked “the necessary data to precisely
determine the geographic exclusion zones”), rev’d on other grounds, 834 F.3d 696
(6th Cir. 2016). Moreover, the provision presents a total safe harbor: Registrants
who establish a residence at a preapproved address “shall not be found in violation
[of ASORCNA] on the basis of” their residence there. Ala. Code § 15-20A-11(g).
When coupled with ASORCNA’s mens rea requirement, the preapproval provision
suffices to give fair notice of the residential zones of exclusion. See Hill v.
Colorado, 530 U.S. 703, 732 (2000) (explaining that a statutory scienter
requirement “ameliorated” concerns of facial vagueness).
Of course, fair notice is not the sine qua non of vagueness; rather, a law may
still be unconstitutionally vague if it fails to provide guardrails against
discriminatory enforcement.

Kolender v. Lawson, 461 U.S. 352, 357 (1983)

(“[T]he more important aspect of vagueness doctrine ‘is not actual notice, but the
27

other principal element of the doctrine—the requirement that a legislature establish
minimal guidelines to govern law enforcement.’” (quoting Smith v. Goguen, 415
U.S. 566, 574 (1974))). Prior to the Amendment, vague terms like “overnight” and
“residence” presented the potential for such disparate enforcement.

(See

Doc. # 51, at 26.) These terms have now been defined, see Ala. Code § 15-20A4(14), (21), and the safe harbor of preapproval helps protect against uneven
application of the law. Accordingly, the Amendment has assuaged concerns of
arbitrary enforcement, and Plaintiffs’ vagueness challenge fails to state a claim as
to the residency restriction.13
As for the employment restrictions, the Amendment has not prevented
Plaintiffs from stating a claim. Despite its refined statutory definitions, see Ala.
Code § 15-20A-4, ASORCNA still fails to put ordinary people on notice of the
extent or effect of the employment exclusion zones. See Johnson, 135 S. Ct. at
2556. Without a safe-harbor provision14 or a publicly available land-use database,
registrants can only guess at whether their place of employment falls within a zone
of exclusion. See Snyder, 101 F. Supp. 3d at 684 (striking down geographic

13

In their operative complaint, Plaintiffs allege that law enforcement agencies have not
applied the residency restrictions uniformly. Although the vagueness challenge will be
dismissed in part, the dismissal will be without prejudice so that Plaintiffs can re-plead their
claim if these uneven enforcement practices have persisted past the Amendment’s effective date
of August 1, 2017.
14

The preapproval provision discussed above applies only to the residential zones of
exclusion. See Ala. Code § 15-20A-11(g).
28

exclusion zones in part because “Michigan has not provided registrants with a map
of exclusion zones or a list of all school properties”).

Similarly, while the

Amendment responds to multiple concerns highlighted by the court—registrants
are no longer barred from applying to prohibited employers, and “employment”
now excludes necessary travel, Ala. Code §§ 15-20A-13, 15-20A-4(5)—the
employment restriction remains confoundingly opaque.

For example, the law

offers no guidance whatsoever for registrants whose employer is located in a
compliant zone, but who have to perform service calls or other intermittent work in
zones of exclusion. Defendants’ motion to dismiss will be denied as to this portion
of Count 3.
Finally, in their second amended complaint, Plaintiffs added a vagueness
challenge to ASORCNA’s reporting requirements, which Defendants have also
moved to dismiss. That motion is due to be granted.
Plaintiffs challenge the provisions that require registrants to report to law
enforcement in person following their release from jail and their establishment or
termination of residency, employment, or school attendance. Ala. Code § 15-20A10(a)–(c), (e); see also id. § 15-20A-7(a) (detailing the information to be reported).
But not only does the statutory text give “people of ordinary intelligence a
reasonable opportunity to understand” what they can and cannot do, it also offers
the requisite guidelines for uniform enforcement. United States v. Wayerski, 624
29

F.3d 1342, 1347 (11th Cir. 2010) (quoting Hill, 530 U.S. at 732). These provisions
clearly state what to report, where to report it, and when to report it. While some
uncertainty remains regarding what it means to “establish[ ] a new residence,” see
Ala. Code § 15-20A-10(b), the examples offered in the definition of “reside” help
give fair notice of the statute’s requirements and prevent arbitrary enforcement,
id. § 15-20A-4(20). “[B]ecause we are ‘condemned to the use of words, we can
never expect mathematical certainty from our language.’” Hill, 530 U.S. at 733
(alteration omitted) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110
(1972)). While the challenged language may be somewhat murky and uncertain, it
is clear enough to pass constitutional muster.
The internet reporting requirements are also clear enough to provide
registrants sufficient direction about what to report and how to report it.

As

recounted above, ASORCNA mandates that a sex offender report all email
addresses

or

other

“monikers

used

for

self-identification

in

Internet

communications”—other than those used “exclusively in connection with a lawful
commercial transaction”—as well as “any and all Internet service providers used
by the sex offender.” Ala. Code § 15-20A-7(a)(9), (18). While it does not provide
specific definitions of these terms, their ordinary meanings provide offenders with
adequate notice.

30

Plaintiffs contend that the requirement is ambiguous, and as an example
point to Doe 10’s confusion about whether he needs to report his use of his
girlfriend’s computer or phone to access the internet. “He is also unsure whether
he is required to report the phone number immediately each time he uses the
phones or computer of other friends and family members.” (Doc. # 81, at 39–40.)
This confusion is in some ways understandable, because it derives from disbelief
that the arm of ASORCNA can actually reach so far. Must a registrant who
connects to the wifi at a coffee shop really report that within three days? What
about when he accesses the internet from a computer terminal at the public library?
When he borrows his neighbor’s smartphone to check the weather?
Yet no matter how intrusive the statute is, the ordinary meaning of its
commands are clear.

An “Internet service provider” is “a company or other

organization which provides access to the Internet and related services.” “Internet
Service Provider,” OED Online (accessed December 1, 2017); see also “Internet
Service Provider,” Black’s Law Dictionary (10th ed. 2014) (defining the term as
“[a] business or other organization that offers Internet access, typically for a fee”).
Thus, a registrant “uses,” and therefore must immediately report, the services of
the ISP when he or she uses offerings of the “company or other organization which
provides access to the Internet.” A “use” can be by someone other than a direct
customer. Hence, as the State points out, Doe 10’s worries constitute “rather clear31

cut violations of the reporting requirement.” (Doc. # 87, at 22.) So, too, do the
other hypotheticals listed above. Since the statutory provision at issue clearly
proscribes some conduct in which Plaintiffs engage, they cannot complain of
vagueness. Alabama Educ. Ass’n v. State Superintendent of Educ., 746 F.3d 1135,
1139–40 (11th Cir. 2014).
Plaintiffs’ contention that ASORCNA unlawfully vests law enforcement
agencies with unbound discretion to determine whether a registrant must report “in
person, electronically, or telephonically” likewise fails to state a claim. While “[a]
statute can be impermissibly vague . . . if it authorizes or even encourages arbitrary
and discriminatory enforcement,” Hill, 530 U.S. at 732, vagueness challenges
outside the First Amendment context are typically reviewed “only as applied in the
instant case,” United States v. Hasner, 340 F.3d 1261, 1269 (11th Cir. 2003). But
see Ala. Educ. Ass’n, 746 F.3d at 1139 (“[I]f the enactment implicates no
constitutionally protected conduct, the inquiry on a facial challenge is whether ‘the
enactment is impermissibly vague in all of its applications.’” (quoting Vill. of
Hoffman Estates, 455 U.S. at 495)). Either way, Plaintiffs have neither plausibly
alleged that they are suffering from arbitrary enforcement nor shown that the
discretion left to law enforcement makes the statute vague always and everywhere.
Plaintiffs have thus failed to state a claim that subsection (e)(1) is void for

32

vagueness, and Defendants’ motion to dismiss will be granted as to Plaintiffs’
vagueness challenge to Ala. Code § 15-20A-10(e).
B.

First Amendment Claims
As incorporated by the Fourteenth Amendment, see Near v. Minnesota ex

rel. Olson, 283 U.S. 697, 707 (1931), the First Amendment prohibits state laws
“abridging the freedom of speech, or of the press.”

U.S. Const. amend. I.

Plaintiffs allege that the branded-identification and internet reporting requirements
violate this bedrock principle of democratic governance.

Each of their First

Amendment challenges will be addressed in turn.
1.

Count IV: Compelled Speech

The First Amendment’s promise of freedom of speech embraces not only the
right to speak, but also the right not to speak. Wooley v. Maynard, 430 U.S. 705,
713 (1977). At issue in Wooley was a New Hampshire law that required all drivers
to display automobile tags bearing the state’s motto. Id. at 707. Striking down the
law, the Supreme Court observed that the state treads into unconstitutional territory
where it requires its citizens to display an ideological message “for the express
purpose that it be observed and read by the public.” Id. at 713. ASORCNA’s
branded-identification requirements, read holistically, admit of such a purpose.
Accordingly, Defendants’ motion to dismiss is due to be denied as to Count 4.

33

Urging dismissal, Defendants, again, re-allege arguments from their initial
motion to dismiss; the court, again, rejects them. Only two aspects of this second
motion warrant any further discussion: the Northern District of California’s
unpublished decision in Doe v. Kerry, No. 16-CV-654-PJH, 2016 WL 5339804
(N.D. Cal. Sept. 23, 2016), and the Amendment’s clarification that registrants need
only relinquish non-branded identification that was issued to them by “state motor
vehicle agenc[ies],” Ala. Code § 15-20A-18(d).
The district court in Doe v. Kerry heard a challenge to the International
Megan’s Law, 34 U.S.C. § 21501 et seq., which requires that passports issued to
sex offenders convicted of a sex offense against a minor display a unique identifier
indicating the bearer’s conviction. 2016 WL 5339804, at *6. The sex-offender
plaintiffs contended that the branding of their passports constituted illegally
compelled speech. The court dismissed their claim for lack of subject matter
jurisdiction because the Secretary of State had not yet implemented the “unique
identifier” requirement; thus, the plaintiffs lacked standing to challenge a law not
yet ripe for adjudication. Id. at *12, *15. Then the court went on to “briefly
address[ ]” the plaintiffs’ compelled speech claim, and found that Rule 12(b)(6)
dismissal would also be appropriate since the passport identifier—once
implemented—would constitute speech by the government, not by the individual
passport holder. Id. at *16–18. The court distinguished the case from Wooley
34

because “[f]actual information regarding a criminal conviction is not equivalent to
an ideological message on a license plate or a ballot.” Id. at *18.
The analysis in Doe v. Kerry does not persuade as to the facts of this case.
For one, the Supreme Court long ago rejected the distinction between ideological
and factual messages in the compelled-speech arena. Riley v. Nat’l Fed. of the
Blind, 487 U.S. 781, 797–98 (1988) (“[C]ases cannot be distinguished simply
because they involved compelled statements of opinion while here we deal with
compelled statements of ‘fact’: either form of compulsion burdens protected
speech.”).
For another, simply because a speech act is by the government does not
mean that private speech interests cannot be implicated. Otherwise, the Supreme
Court’s holding in Wooley would make no sense given the Court’s later
clarification that license plate designs “are government speech.” Walker v. Texas
Div., Sons of Confederate Veterans, Inc., 139 S. Ct. 2239, 2252 (2015). Instead,
the distinction between government speech and government-compelled speech can
be two sides of the same pancake. As the Supreme Court explained in the context
of a challenge by a private party seeking to require Texas to offer a specific license
plate design, “just as Texas cannot require [the Sons of Confederate Veterans] to
convey the State’s ideological message, [the Sons] cannot force Texas to include a
Confederate battle flag on its specialty license plates.” Id. at 2253. So here: “The
35

[D]efendants’ government-speech argument misses the mark . . . [because]
[r]egardless of whether the [state’s branding requirement] is the government’s
message, private First Amendment rights can still be significantly implicated.”
Cressman v. Thompson, 798 F.3d 938, 948 (10th Cir. 2015).
What matters instead is whether the government’s message is “readily
associated” with the private person compelled to propound it. Wooley, 430 U.S. at
717 n.15. And here, there are allegations to suggest it is. As the court previously
noted, “a minute portion of the Alabama population carries the branded sex
offender identification card,” and “the information displayed on an identification
card, the purpose of which is to facilitate the recognition of an individual based on
his unique characteristics, is undoubtedly associated with the card’s bearer.”
(Doc. # 51, at 46 n.11.)
This “ready association” also serves to distinguish a branded passport from a
branded driver’s license. Passports are a handshake between governments—a
document provided by one government so that a second government will grant
entry to its citizens—and are not commonly used in the interpersonal context. As
the plaintiffs allege in their amended complaint, however, driver’s licenses are
frequently used as primary identification, presented to cashiers and tellers at banks,
restaurants, gas stations, grocery stores, and movie theaters. (Doc. # 81, at 33–36);

36

see also McGuire, 83. F Supp. 3d at 1253–54 (chronicling ways registrants are
affected by having to use branded identification in their everyday lives).15
Similarly, ASORCNA’s newly clarified relinquishment provision does not
save the statute from Plaintiffs’ challenge. See Ala. Code § 15-20A-18(d). Even
though registrants are no longer required to relinquish all identification not bearing
the “CRIMINAL SEX OFFENDER” inscription, they are still required to give up
driver’s licenses that do not exhibit the State’s chosen message. Despite the
narrowed reach of the relinquishment provision, the branded-identification
requirement still mandates that registrants’ driver’s licenses display the inscription.
Without further fact-finding, it is impossible at this stage to determine whether the
State’s modification constitutes the narrow tailoring required to pass constitutional
muster.16 Thus, because the plaintiffs have alleged a plausible compelled-speech
claim, a Rule 12(b)(6) dismissal is inappropriate.

15

Though in McGuire the court included these details as part of its analysis of whether
the branding requirement constituted unconstitutional public shaming—which, the court
concluded, it did not—the court noted that “there may be other constitutional concerns with
requiring registrants to carry a branded license.” 83 F. Supp. 3d at 1254.
For instance, instead of requiring the license to bear the inscription “CRIMINAL SEX
OFFENDER,” some states have instituted a more discrete marking that would indicate the
classification to a police officer but not to the general public. See, e.g., Del. Code Ann. Tit.
21, § 2718(e) (2015) (using the letter “Y” to denote sex offender status); see also Fla.
Stat. § 322.141(3) (2016) (requiring a code to be printed for less serious offenders, but using the
words “sexual predator” for the most serious offenders). These less-intrusive identifiers would
still accord with the State’s stated purpose in requiring the marking: “enable[ing] law
enforcement officers to identify the licensee as a sex offender.” Ala. Code § 15-20A-18(b).
16

37

2.

Count V: Overbreadth

Plaintiffs contend that the overbreadth of ASORCNA’s internet reporting
requirements unconstitutionally burdens their First Amendment rights. Analysis of
Count 5 entails a three-part inquiry: First, do the internet reporting requirements
implicate the First Amendment? Second, if so, what level of scrutiny should be
applied? And third, have Plaintiffs stated a claim that the challenged provisions
fail under the proper standard of review?
a.

The challenged internet reporting requirements burden
First Amendment activities.

ASORCNA requires registrants to report “[a]ny email addresses or instant
message address or identifiers used, including any designations or monikers used
for self-identification in Internet communications or postings other than those used
exclusively in connection with a lawful commercial transaction.” Ala. Code § 1520A-7(a)(9). Registrants must also provide a list of “any and all Internet service
providers used by the sex offender.” Id. § 15-20A-7(a)(18). Once this information
Similarly, it is significant that the State has chosen to brand registrant’s driver’s licenses
rather than some supplemental form of identification. As discussed above, as the de facto default
form of government ID, driver’s licenses are required for entry into or to obtain service from a
bevy of institutions—including this courthouse. See McGuire, 83 F. Supp. 3d at 1253–54.
Alternate identification, like school or employer IDs, often lacks necessary identifying
information or assurances of accuracy. (No bank teller would cash a check on the bearer’s
presentation of a library card.) And passports are a poor replacement, as they are expensive to
obtain, cumbersome in size, and highly sought after on the black market. See Stolen Passports:
A Terrorist’s First Class Ticket; Hearing Before the H. Comm. on Int’l Relations, 108th Cong. 1
(2004) (statement of Rep. Henry J. Hyde, Chairman, H. Comm. on Int’l Relations) (“A stolen
passport may be worth more than its weight in gold.”); accord Rey Koslowski, Smart Borders,
Virtual Borders, or No Borders: Homeland Security Choices for the United States and Canada,
11 L. & Bus. Rev. Am. 527, 536 (2005) (recognizing the demand for stolen passports).
38

has been turned over to the government, it “may only be disclosed pursuant to
federal law or to law enforcement for the purpose of administering, implementing,
or enforcing [ASORCNA] or to prevent or investigate a crime by the sex offender
based on an articulable basis for suspicion.” Id. § 15-20A-42(h).
Because the Act “requir[es] a narrow class of individuals to notify the
government within [a short time] of engaging in online communication with a new
identifier,” it places a burden on “those individuals’ ability and willingness to
speak on the Internet.” Doe v. Harris, 772 F.3d 563, 572 (9th Cir. 2014); see
Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (explaining that
conditioning speech on an affirmative act of notifying the government of some
condition deters expressive activity).

It is no defense that the burden falls

principally on online speech, Reno v. ACLU, 521 U.S. 844, 870 (1997), or that the
Act burdens rather than bans speech, Sorrell v. IMS Health, Inc., 564 U.S. 552,
565–66 (2011) (“[T]he distinction between laws burdening and laws banning
speech is but a matter of degree.” (quoting United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 812 (2000))).
Moreover, as discussed above, the statute’s clarity in its reporting
requirements simply serves to emphasize just how far it extends. As the State
acknowledges, Doe 10’s example of temporarily using his girlfriend’s computer
for internet research without reporting it constitutes a “rather clear-cut violation[ ]
39

of the reporting requirement.” (Doc. # 87, at 22). So, too, would much, much else:
Every time a registrant connects to a new wifi spot at a McDonald’s; every time he
uses a computer terminal at a public library; every time he borrows a friend’s
smartphone to read the news online. It is hard to imagine how such requirements
could not burden registrants’ First Amendment right to free speech.
Nor does ASORCNA stop there.

It also requires that registrants

immediately report “[a]ny email addresses or instant message address or identifiers
used, including any designations or monikers used for self-identification in Internet
communications or postings.” Ala. Code § 15-20A-7(a)(9) (emphasis added). By
its very terms the statute regulates registrants’ speech. Subsection (a)(9)’s new
carve-out for identifiers “used exclusively in connection with a lawful commercial
transaction” adds little, if any, protection—and to the extent it privileges
commercially related speech over other subjects of expression, the Amendment
transforms the internet reporting requirement into a content-based restriction, the
boogeyman of First Amendment jurisprudence. See Playboy, 529 U.S. at 813. It is
clear that the challenged provisions burden registrants’ First Amendment rights.
See Harris, 772 F.3d at 573 (“[J]ust as the Act burdens sending child pornography
and soliciting sex with minors, it also burdens blogging about political topics and
posting comments to online news articles.”).

40

b.

Strict scrutiny applies.

Once a burden on speech has been found, the inquiry turns to the standard
under which that burden will be analyzed. In the First Amendment context, the
level of scrutiny hinges on content neutrality. Citizens United v. F.E.C., 558 U.S.
310, 340 (2010). “Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be justified
only if the government proves that they are narrowly tailored to serve compelling
state interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (citing
R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)). Under strict scrutiny, the challenged
law will be struck down unless it presents the least restrictive means of serving the
government’s stated interest. Playboy, 529 U.S. at 813 (citing Reno, 521 U.S. at
874). On the other hand, if the law regulates speech without reference to its
content, it receives “an intermediate level of scrutiny.” Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 642 (1994).
Because ASORCNA’s reporting requirement turns on the topic of the speech
at issue—i.e., whether a registrant is using an internet identifier “exclusively in
connection with a lawful commercial transaction,” Ala. Code § 15-20A-7(a)(9)—it
qualifies as a content-based restriction. Reed, 135 S. Ct. at 2227. And because the
“law is content based on its face,” it is “subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or lack of ‘animus

41

toward the ideas contained’ in the regulated speech.”

Id. at 2228 (quoting

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). “In other
words, an innocuous justification cannot transform a facially content-based law
into one that is content neutral.” Id.
c.

Plaintiffs have stated a claim that the internet reporting
requirements cannot withstand strict scrutiny.

The State has a tough row to hoe in support of dismissal of Plaintiffs’
challenge to the internet reporting requirements.

“It is rare that a regulation

restricting speech because of its content will ever be permissible.”

Brown v.

Entm’t Merchants Ass’n, 564 U.S. 786, 799 (2011). At least as viewed at the
motion to dismiss stage, ASORCNA is not one of those regulations.
It is undisputed that the State’s interest is a compelling one: protecting the
vulnerable from predatory sex offenders.

See Ala. Code § 15-20A-2(4) (“The

Legislature declares that its intent . . . is to assist law enforcement in carrying out
their duties and, most importantly, to protect the public, especially children.”).
This interest cannot be gainsaid. E.g., Doe v. Shurtleff, 628 F.3d 1217, 1223 (10th
Cir. 2010) (“We have no doubt that the State . . . has a compelling interest in
investigating kidnapping and sex-related crimes.”). And, importantly, this interest
does not stem from the suppression of free expression.

See United States v.

O’Brien, 391 U.S. 367, 377 (1968) (rejecting governmental interests in the
suppression of free speech as sufficient to justify a restriction on speech).
42

But the hurdle for the State is proving that Alabama narrowly tailored
ASORCNA’s speech restrictions to choose the least restrictive means of regulating
speech. See Playboy, 529 U.S. at 813. While the State has shown that ASORCNA
puts only a minimal restriction on Plaintiffs’ First Amendment right to anonymous
speech—standing alone, registrants’ knowledge that their speech may be
monitored does not unconstitutionally burden their speech, see Laird v. Tatum, 408
U.S. 1, 11 (1972), and ASORCNA requires that registrants’ internet activity not be
disclosed to the public, Ala. Code § 15-20A-8(b)—this is not enough to prove
ASORCNA’s narrow tailoring. Rather, the law’s requirement of an affirmative act
as a condition of First Amendment activity, the wide discretion it leaves to law
enforcement, the broadness of its tailoring, and its threat of serious criminal
penalties combine to create a chilling effect that demonstrates the lack of a proper
fit.
First, under ASORCNA, “anytime registrants want to communicate with a
new identifier, they must assess whether the message they intend to communicate
is worth the hassle of” immediately reporting the change to law enforcement.
Harris, 772 F.3d at 582. This undoubtedly chills speech and deters expressive
activity. See Lamont, 381 U.S. at 307. And since some registrants will be forced
to report in person if “required by the local law enforcement agency,” Ala.

43

Code § 15-20A-10(e)(1), the requirement “is not only psychologically chilling, but
physically inconvenient,” Harris, 772 F.3d at 582.
Second, the discretion left to local law enforcement is troubling. While
insufficient for Plaintiffs to succeed in their Fourteenth Amendment void-forvagueness challenge, the uncertainty of how registrants must report adds to the
chilling effect.17 See Am. Booksellers v. Webb, 919 F.2d 1493, 1499–500 (11th
Cir. 1990) (First Amendment protects against both “direct and indirect burdens on
speech” (emphasis added)). For this reason, objective, nondiscretionary criteria for
implementation are especially important when First Amendment rights are in play.
Compare, e.g., City of Littlejohn v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 783 (2004)
(upholding “adult business” licensing scheme because it “applie[d] reasonably
objective, nondiscretionary criteria”) with Forsyth Cty. v. Nationalist Movement,
505 U.S. 123, 131–34 (1992) (sustaining a First Amendment challenge to county
ordinance allowing administrator to assess a fee for assemblies, where “[n]othing

17

To be sure, there is some theoretical tension to the conclusion that Plaintiffs’
Fourteenth Amendment vagueness challenge fails, but their First Amendment overbreadth claim
succeeds, when the latter finding is based in part on the law’s vagueness and broad grant of
discretion. After all, the First Amendment only applies to the State because the Due Process
Clause of the Fourteenth Amendment incorporates those protections. But the separate analysis is
warranted: There is a difference between a “pure” vagueness challenge under the Due Process
Clause, which is analyzed above, and a First Amendment-as-incorporated-by-the-Fourteenth
Amendment overbreadth/vagueness challenge, which is addressed here. See Alabama Educ.
Ass’n, 746 F.3d at 1138.
44

in the law or its application prevent[ed] the official from encouraging some views
and discouraging others through the arbitrary application of fees”).
Yet because ASORCNA leaves it up to individual law enforcement agencies
to develop their own requirements on how an offender must report, there is no
objective limiting principle to prevent arbitrary or discriminatory enforcement.
The sheriff of Montgomery County could decide that sex offenders must report in
person each time they create a new online identifier, while the sheriff of
neighboring Lowndes County could conclude that offenders are free to report such
changes telephonically. Indeed, nothing in subsection (e)(1) would prevent local
police officers from requiring one registrant to report telephonically and another to
report in person. In such a case, it would not be unreasonable for registrants to fear
that engaging in online discussions critical of law enforcement or ASORCNA
could contribute to different treatment. This level of discretion is thus in tension
with the “stringent protection of First Amendment rights” guaranteed by the
Constitution. Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983); cf. Bell v.
City of Winter Park, 745 F.3d 1318, 1324 (11th Cir. 2014) (“A grant of
unrestrained discretion to an official responsible for monitoring and regulating
First Amendment activities is facially unconstitutional.” (quoting Atlanta Journal
& Constitution v. City of Atlanta Dep’t of Aviation, 322 F.3d 1298, 1310 (11th Cir.
2003) (en banc))).
45

Third, the attempt at narrow tailoring in the form of excepting from the
reporting requirements online communications “used exclusively in connection
with a lawful commercial transaction,” Ala. Code § 15-20A-7(a)(9), is, at most, a
wash. On the one hand, the carve-out seems like a good faith effort by the State to
narrow the restriction to communications most likely to be problematic, and it
seems reasonable to assume that communications related to lawful commercial
transactions do not belong in this category. Cf. White v. Baker, 696 F. Supp. 2d
1289, 1309 (N.D. Ga. 2010) (“A regulatory scheme designed to further the state’s
legitimate interest in protection children from communication enticing them into
illegal sexual activity should consider how and where on the internet such
communication occurs.”). On the other hand, it is troubling that the law’s tailoring
takes the form of elevating commercial speech over speech closer to the core of
First Amendment protection, and that the State does so with no explanation of why
less restrictive means cannot be used to serve the same interest. As the Ninth
Circuit pointed out when striking down California’s version of ASORCNA, if “a
sex offender establishes a username on a news outlet’s website for purposes of
posting comments to news articles, it is hard to imagine how speedily reporting
that identifier will serve the government’s interests.” Harris, 772 F.3d at 582.
Fourth, it is difficult to escape the underlying fact that slip-ups by
noncompliant registrants can result in felony convictions under ASORCNA. “The
46

severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images.” Reno, 521 U.S.
at 872. Because it chills such a wide swath of protected speech under penalty of a
felony, ASORCNA is not narrowly tailored, and does not present the least
restrictive means of regulating speech. See Playboy, 529 U.S. at 813. Plaintiffs
have thus stated a claim in their challenge to the internet reporting requirements.
d.

Even applying intermediate-scrutiny, Plaintiffs have stated
a claim that the Act violates the First Amendment.

If the lawful-commercial-transactions exception were not grounds for
finding the internet reporting requirement to be a content-based speech
restriction—for instance, if the exception applied to all paid internet use—the
challenged provisions would be reviewed under intermediate scrutiny. Applying
this standard of review, the internet reporting requirement would pass First
Amendment muster if it “furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.” Turner Broad.,
512 U.S. at 662 (quoting O’Brien, 391 U.S. at 377).

Unlike strict scrutiny,

intermediate scrutiny does not require the use of the least-restrictive means of
regulation. Id. As explained above, the State has a sufficiently weighty interest

47

supporting ASORCNA’s speech restrictions. But because the Act is not narrowly
tailored, Defendants’ motion to dismiss is due to be denied.
Before discussing the cut of ASORCNA’s cloth, some clarification of the
narrow-tailoring standard is in order. The State argues that the intermediatescrutiny analysis sails past the narrowly tailored prong “so long as the regulation
promotes a substantial government interest that would be achieved less effectively
absent the regulation.” (Doc. # 87, at 10 (quoting Shurtleff, 628 F.3d at 1224 n.5
(in turn quoting Turner Broad., 512 U.S. at 662)).) This would be a jarringly
deferential standard of review. A complete ban on registrants’ online speech, for
example, counterintuitively could be “narrowly tailored” because it would better
protect children than would the existing ASORCNA scheme. But when returned to
its original context in Turner Broadcasting, this quote reveals the narrowly tailored
prong to be more demanding than the State thinks it is.
The Supreme Court in Turner Broadcasting dedicated a full paragraph to
setting out the intermediate-scrutiny standard of review.18 512 U.S. at 662. By

18

The Supreme Court explained intermediate scrutiny as follows:

Under O’Brien, a content-neutral regulation will be sustained if “it furthers an
important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” [367 U.S.] at 377. To satisfy this standard, a
regulation need not be the least speech-restrictive means of advancing the
Government’s interests. “Rather, the requirement of narrow tailoring is satisfied
‘so long as the . . . regulation promotes a substantial government interest that
48

plucking one sentence from this paragraph-length explainer, the State invites the
court to erroneously apply a more forgiving standard under the guise of
intermediate scrutiny. A straightforward reading of Turner Broadcasting shows
that the narrow-tailoring prong protects against speech restrictions that cut too
deeply into protected speech, even if the overly broad sweep of that restriction
makes its promotion of governmental interests more effective.19 Id.
Here, Plaintiffs have shown that ASORCNA “undoubtedly chills First
Amendment [a]ctivity.” Harris, 772 F.3d at 579. For the same reasons that
Plaintiffs have stated a claim under strict scrutiny, Plaintiffs have also plausibly
alleged that the internet reporting requirements “burden substantially more speech
than is necessary to further the government’s legitimate interests.” Id. (quoting
Ward, 491 U.S. at 799) (holding that California’s sex-offender reporting
would be achieved less effectively absent the regulation.’” Ward [v. Rock Against
Racism, 491 U.S. 781, 799 (1989)] (quoting United States v. Albertini, 472 U.S.
675, 689 (1985)). Narrow tailoring in this context requires, in other words, that
the means chosen do not “burden substantially more speech than is necessary to
further the government’s legitimate interests.” Ward, 491 U.S. at 799.
Turner Broad., 512 U.S. at 662.
19

Turner Broadcasting’s supporting precedent echoes this conclusion. The “less
effectively absent the regulation” language cited by the State comes from Ward v. Rock Against
Racism, 491 U.S. 781, 799 (1989). The Ward Court followed that sentence with this
explanation: “To be sure, this standard does not mean that a [restriction on speech] may burden
substantially more speech than is necessary to further the government’s legitimate interests.” Id.
(This sentence made it into Turner Broadcasting as well. See 512 U.S. at 662.) Ward can be
distinguished from the instant case—it dealt with a noise regulation and its analysis proceeded
under the time, place, or manner rubric for speech restrictions—but its analysis of a contentneutral restriction of speech hinged on the same intermediate-scrutiny standard the court applies
today. Therefore, Ward’s expression of the standard guides this analysis.
49

requirements failed intermediate scrutiny review). Therefore, Defendants’ motion
to dismiss is due to be denied.
3.

Count VI: Individual-Capacity Claim

In the final count of their complaint, Plaintiffs seek to hold Defendants
Richardson and Stabler liable in their individual capacities under 42 U.S.C. § 1983
for their implementation of the branded-identification requirement. (In this section
of the opinion, “Defendants” will refer only to Messrs. Richardson and Stabler.)
Defendants moved to dismiss this claim on the basis of their qualified immunity.
Because Plaintiffs have failed to clear the high bar of defeating this defense, the
motion is due to be granted.
Under the doctrine of qualified immunity, “courts may not award damages
against a government official in his personal capacity unless ‘the official violated a
statutory or constitutional right,’ and ‘the right was clearly established at the time
of the challenged conduct.’”

Lane v. Franks, 134 S. Ct. 2369, 2381 (2014)

(quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011)). This deferential standard
requires more than mere proof that the official violated the complainant’s rights.
Rather, the contours of the right in question “must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)); see also Snider v. Jefferson State Cmty. Coll., 344 F.3d
50

1325, 1328 (11th Cir. 2003) (“[I]n light of preexisting law, the unlawfulness must
be apparent: plain, clear, obvious.”). Although a prior court ruling is not necessary
to clearly establish a right, “the government official’s act [must be] so obviously
wrong . . . that only a plainly incompetent official or one who was knowingly
violating the law would have committed the act.” Snider, 344 F.3d at 1328.
To determine whether a right has been clearly established, the court consults
case law from the U.S. Supreme Court, the Eleventh Circuit, and the Supreme
Court of Alabama. See id. The burden of defeating qualified immunity falls on
Plaintiffs. See id. at 1327 (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002)).
Defendants’ motion to dismiss is due to be granted because Plaintiffs have
failed to prove that Defendants violated a clearly established right. It is not enough
that Plaintiffs have stated a claim that their constitutional rights were violated, see
supra Part IV.B.1; this alone does not clearly establish the right at issue. Similarly,
Plaintiffs cite cases for the proposition that it is clearly established that the First
Amendment protects against compelled speech, but their precedent presents too
tenuous an analogy to the instant case. Cf. W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943); Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004).
“[T]he right allegedly violated must be established, not as a broad general
proposition, but in a particularized sense so that the contours of the right are clear
51

to a reasonable official.”

Reichle v. Howards, 566 U.S. 658, 665 (2012).20

Brought into proper focus, the right at issue here is not the general protection
against compelled speech, but the specific right to be free from compelled speech
on a driver’s license. See id. (reframing the inquiry from “the general right to be
free from retaliation for one’s speech” to “the more specific right to be free from a
retaliatory arrest that is otherwise supported by probable cause”).
The dispositive question, then, is this: Could Defendants reasonably have
believed, at the time of their implementation of the branded-identification
requirement, that the State could compel speech on registrants’ driver’s licenses?
The court concludes that this is the sort of “open legal question[ ]” about which
“government officials [have] breathing room to make reasonable but mistaken
judgments.” Lane, 134 S. Ct. at 2381 (quoting Al-Kidd, 563 U.S. at 743). Dicta in
Wooley v. Maynard could be construed, if loosely, to justify Defendants’ actions.
430 U.S. at 717 n.15 (distinguishing currency from license plates in that
“[c]urrency is generally carried in a purse or pocket and need not be displayed to
the public”). Plaintiffs have not identified any relevant case law that would put
Defendants on notice that they were treading on constitutionally suspect ground,
and the court’s own research similarly has come up empty. Therefore, Plaintiffs

20

Although Reichle was a Bivens action, not a § 1983 claim like this case, “the qualified
immunity analysis is identical under either cause of action.” Wilson v. Layne, 526 U.S. 603, 609
(1999).
52

have failed to show that the right in question was clearly established, and as a
result they have failed to state a claim as to Count 6.21
V. CONCLUSION
Accordingly, it is ORDERED that Defendants’ motion to dismiss
(Doc. # 87) is GRANTED in part and DENIED in part. It is further ORDERED as
follows:
1.

Defendants’ motion to dismiss is DENIED as to Count 1.

2.

Defendants’ motion to dismiss is GRANTED as to Count 2. Count 2

is DISMISSED without prejudice.
3.

Defendants’ motion to dismiss is GRANTED in part and DENIED in

part as to Count 3. The motion to dismiss is GRANTED as to Plaintiffs’ claim that
the residency restriction is unconstitutionally vague, Ala. Code § 15-20A-11(a)–
(e), (g). The motion is also GRANTED as to Plaintiffs’ vagueness challenge to the
residency, employment, school, and internet reporting requirements, id. §§ 1520A-7(a)(5)–(9), (18), 15-20A-10(a)–(c), (e).

These portions of Count 3 are

DISMISSED without prejudice. The motion is DENIED as to the claim that the
employment restriction is unconstitutionally vague, id. § 15-20A-13(b), (d), (f).
21

To be sure, the court has acknowledged the apparently malicious intent behind the
branding decision. (Doc. # 51, at 46 (“Outside of allowing law enforcement to readily identify a
sex offender’s registrant status, ASORCNA’s identification requirements appear to serve no
other purpose than to humiliate offenders who have already atoned for their crimes.”).) But
Defendants must be more than malicious before individual-capacity liability attaches. Because
Plaintiffs have not shown a violation of clearly established rights, Count 6 is due to be dismissed.
53

4.

Defendants’ motion to dismiss is DENIED as to Count 4.

5.

Defendants’ motion to dismiss is DENIED as to Count 5.

6.

Defendants’ motion to dismiss is GRANTED as to Count 6. Count 6

is DISMISSED without prejudice.
7.

Plaintiffs’ Motion for Leave to File Third Amended Complaint

(Doc. # 118) and their Amended Motion for Leave to File Third Amended
Complaint (Doc. # 119) are DENIED at this time without prejudice.
DONE this 14th day of March, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

54