Bruce Henry v. Sheriff of Tuscaloosa County, Alabama

USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 1 of 30 FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10139 ____________________ BRUCE HENRY, Plaintiff-Appellee, versus SHERIFF OF TUSCALOOSA COUNTY, ALABAMA, in his official capacity, DISTRICT ATTORNEY OF TUSCALOOSA COUNTY, ALABAMA, in his official capacity, ATTORNEY GENERAL OF THE STATE OF ALABAMA, in his official capacity, Defendants-Appellants. ____________________ Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:21-cv-00797-RAH-JTA ____________________ USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 2 of 30 2 Opinion of the Court 24-10139 Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges. ROSENBAUM, Circuit Judge: Alabama enacted the Alabama Sex Offender Registration and Community Notification Act (“Act”) in 2011. ALA. CODE § 15- 20A-11. Under it, no sex offender may, among other things, “reside or conduct an overnight visit with a minor,” even if they are the minor’s parent, if “[t]he adult sex offender has been convicted of any sex offense involving a child, regardless of whether the adult sex offender was related to or shared a residence with the child vic- tim.” Id. § 15-20A-11(d)(4). This ban applies for the life of the par- ent and prevents them from living with their current and future children. Alabama offers no escape hatch from the Act for a person who falls within its confines. So it prevents Plaintiff Bruce Henry, who was convicted of possessing images of child pornography and has since served his sentence and had a child with his wife, from living with his son. Henry challenged the Act as a violation of his fundamental right to live with his children. Alabama argued that, as a convicted sex of- fender, Henry had no such right. As an en banc Court, we determined that Henry, like all par- ents, enjoys a fundamental right to live with his children. That does not mean that Alabama can’t regulate or even abrogate that right. But to do so, the Act must survive strict scrutiny. That is, Alabama must show that its legislation is narrowly tailored to fur- ther its compelling interest in the safety of children. The en banc USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 3 of 30 24-10139 Opinion of the Court 3 Court remanded this case to us to determine whether the Act is narrowly tailored and survives strict scrutiny. After careful consideration, we conclude that it does not. So we hold the Act to be unconstitutional as applied to Henry. I. BACKGROUND1 We summarize the background of this appeal in three parts. First, we discuss Henry’s background. Second, we explain the as- pects of the Act that govern this appeal and permanently prevent Henry from living with his son. And third, we review the proce- dural history of this case. A. Henry’s Background In 2013, Bruce Henry pled guilty to “knowingly possess[ing] . . . any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornogra- phy.” 18 U.S.C. § 2252A(a)(5)(B). When officers arrested him, Henry had two videos and 348 photos of prepubescent and adoles- cent girls, all of which he had downloaded from the internet. Be- fore his arrest, Henry had no history of sexual offenses. The district court sentenced Henry to 70 months in prison and 60 months of supervised release with special conditions. He served five years of his sentence before his release in March 2018. 1 We take much of the background directly from our en banc opinion because not much has changed since we issued it. In the interest of convenience, we reprint the background here, with only a few updates. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 4 of 30 4 Opinion of the Court 24-10139 After release, Henry completed a qualified Sex Offender Treatment Program, as well as individual and group counseling. Henry con- tinues to attend weekly Sex Addicts Anonymous meetings. He also maintains a steady job, attends church, and volunteers. We note two special conditions of Henry’s supervised re- lease. First, Henry must participate in the United States Probation Office’s computer restriction-and-monitoring program. That pro- gram prohibits Henry from possessing or using certain electronic devices that may communicate with other electronic devices with- out the Probation Office’s prior approval. And second, Henry may not have “any unsupervised, one-to-one contact with any children under the age of 18 other than his own children.” Despite these restrictions, while on supervised release, Henry in two instances accessed pornography. In July 2019, Henry admitted during a polygraphed interview that he used an Amazon Firestick to view pornography. A forensic examination revealed no saved images, but Henry had viewed images with “titles indicating that they were of young or teenage females.” And Henry admitted in a follow-up polygraph test that he actively sought out images of teen girls and children posed in sexual positions. Also, in December 2019, Henry used his wife’s unlocked phone to search for pornographic images. He disclosed the inci- dent to his sexual-offender-treatment provider but failed to inform his probation officer during the officer’s home visit in January 2020. Instead, the probation officer learned about the incident from Henry’s supervision report for that month. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 5 of 30 24-10139 Opinion of the Court 5 Citing these violations, Henry’s probation officer filed a pe- tition to revoke Henry’s supervised release. A federal district court declined. Instead, the court extended Henry’s term of supervised release from 60 to 96 months (through March 2026). Since his De- cember 2019 incident, Henry has not violated his supervised re- lease. In August 2021, Henry and his wife had a son. But because of the Act, Henry cannot live or reside overnight with him (and by extension, his wife). B. The Act As we’ve noted, Alabama enacted the Alabama Sex Offender Registration and Community Notification Act in 2011. The Ala- bama Legislature identified the Act’s purpose as “not to punish sex offenders but to protect the public and, most importantly, promote child safety.” ALA. CODE § 15-20A-2(5). The Act prohibits any sex offender from, among other things, “resid[ing] or conduct[ing] an overnight visit with a minor” unless the sex offender “is the parent, grandparent, stepparent, sib- ling, or stepsibling of the minor.” Id. § 15-20A-11(d). Those ex- emptions, though, are substantially less inclusive than they appear at first glance. That’s so because Section 15-20A-11(d)’s exception itself has five exceptions. As relevant here, a sex offender may not “reside or conduct an overnight visit with a minor,” even if they are the minor’s par- ent, if “[t]he adult sex offender has been convicted of any sex of- fense involving a child, regardless of whether the adult sex offender USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 6 of 30 6 Opinion of the Court 24-10139 was related to or shared a residence with the child victim.” 2 Id. § 15-20A-11(d)(4). This subsection applies to Henry because a “sex offense involving a child” includes “offense[s] involving child por- nography.” Id. § 15-20A-4(27). And under Alabama law, child por- nography includes “[a]ny visual depiction of an individual under 18 years of age engaged in any act of sexually explicit conduct, includ- ing a virtually indistinguishable depiction.” Id. § 13A-12-190(2). The Act’s definitions of “reside” and “conduct an overnight visit” prevent Henry from living with his son. Under Alabama law, a sex offender “reside[s]” at a place if they are “habitually or systematically present at” it. Id. § 15-20A- 4(20). Courts determine whether a person meets that threshold, in turn, “by the totality of the circumstances, including the amount of time the person spends at the place and the nature of the per- son’s conduct at the place.” Id. As a baseline, an offender “re- side[s]” at a place if they “spend[] more than four hours a day” there “on three or more consecutive days” or “more than four hours a day” there “on 10 or more aggregate days during a calendar month.” Id. 2 None of the Act’s other four exceptions apply to Henry. Alabama has not terminated (and is not currently terminating) Henry’s parental rights, ALA. CODE § 15-20A-11(d)(1); Henry hasn’t been convicted of a sexual offense in- volving his child or a minor with whom he resided, id. § 15-20A-11(d)(2), (3); and he has not been convicted of a sexual offense involving the forcible com- pulsion of a minor, id. § 15-20A-11(d)(5). USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 7 of 30 24-10139 Opinion of the Court 7 As for an “overnight visit,” that occurs whenever an offender is in the same place as a minor for any part of the period “between the hours of 10:30 p.m. and 6:00 a.m.” Id. § 15-20A-4(14) (explain- ing “[a]ny presence” is an overnight visit). So to sum up, Section 15-20A-11(d) prevents Henry from be- ing present in the same home as his son (1) at any time between the hours of 10:30 p.m. and 6:00 a.m.; (2) for more than four hours a day on three consecutive days; (3) for more than four hours a day on ten or more days during a calendar month; or (4) in any other circumstance where he is habitually and systematically present at his son’s home. These restrictions are permanent. Alabama law affords no offramp to Henry or anyone else: the Act contains no mechanism for offenders to challenge its prohibitions on residing or staying overnight with their own children. And that restriction persists for the rest of the offender’s life. So even if the offender lives a law- abiding life for decades after their conviction and later has a child, they cannot live with that minor child. See id. § 15-20A-4(13). Nor can they seek or obtain relief from the prohibition. C. Procedural History After Henry and his wife had their son, Henry sued the Sher- iff and District Attorney of Tuscaloosa County and the Attorney General of Alabama. He sought to enjoin enforcement of the Act’s prohibition against residing with his son. See 42 U.S.C. § 1983. When Henry and the Defendants moved for summary judgment, the district court granted Henry’s motion. The court declared the USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 8 of 30 8 Opinion of the Court 24-10139 Act’s prohibition against a parent living with their children facially unconstitutional and universally enjoined its enforcement. A panel of this Court affirmed in part, reversed in part, and vacated and remanded in part. Henry v. Sheriff of Tuscaloosa Cnty., 135 F.4th 1271, 1329 (11th Cir. 2025), reh’g en banc granted, opinion vacated, Henry v. Sheriff of Tuscaloosa Cnty., 150 F.4th 1370 (11th Cir. 2025). It ruled that the prohibition against a parent residing with their own children, as applied, burdened Henry’s “fundamental right to live with and raise [his] child.” Id. at 1293. The panel also held that the prohibition didn’t satisfy strict scrutiny. Id. at 1314. As to the district court’s determination that the prohibition was fa- cially unconstitutional and the corresponding universal injunction, the panel concluded that the district court erred, so the panel va- cated the injunction. Id. at 1325, 1328. Sitting en banc, we vacated the panel opinion and reheard the case. In those proceedings, Alabama argued that parents who engage in misconduct, including receiving a child-sex-offense con- viction like Henry, lack a fundamental right to live with their chil- dren. We rejected Alabama’s position. Henry v. Sheriff of Tuscaloosa Cnty., 180 F.4th 1294, 1298 (11th Cir. 2026) (“Henry II”). Rather, we held that Henry enjoys a fundamental right to live with his chil- dren. Id. Because the Act deprives Henry of that right, we ex- plained, we must apply strict scrutiny to it to determine whether, as applied to Henry, the Act is constitutional. Id. at 1302. As an en banc Court, we remanded the case to the panel to conduct that analysis. Id. at 1319. We address that issue now. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 9 of 30 24-10139 Opinion of the Court 9 II. STANDARD OF REVIEW We review de novo a district court’s grant of summary judg- ment, construing all evidence in the light most favorable to the non-moving party. Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019). Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). An issue of fact is genuine if a reasonable trier of fact could return judgment for the non-moving party. An- derson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is material if it “might affect the outcome of the suit under the gov- erning law” and is not “irrelevant or unnecessary.” Id. III. DISCUSSION We divide our discussion into two parts. First, we review the framework for evaluating substantive-due-process claims. Sec- ond, we apply strict scrutiny to the Act as applied to Henry. A. The Substantive-due-process Framework3 The Due Process Clause of the Fourteenth Amendment prohibits any state from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. Its guarantee is both procedural and substantive. Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997). When, as here, a plaintiff 3 As with much of the background section, we reprint much of our discussion of the substantive-due-process framework from the en banc opinion with very few updates. Again, not much has changed since then. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 10 of 30 10 Opinion of the Court 24-10139 asserts a violation of his substantive-due-process rights caused by legislation, we generally use a two-step framework to resolve the claim. That framework employs two tracks. 4 The first step of the framework dictates which track the analysis takes. That step requires us to determine whether a right is “fundamental.” Id. at 710. Rights are fundamental if they are “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither lib- erty nor justice would exist if they were sacrificed.” Id. at 721 (cleaned up). Rights that don’t satisfy this test are non-fundamen- tal. At the second step, we apply the correct level of scrutiny to the challenged government action. The level of scrutiny depends on whether we are on the fundamental-rights track or the non-fun- damental-rights track. On the fundamental-rights track, we scrutinize the govern- ment action. We do so because the deeply rooted and historically important nature of fundamental rights entitles them to more pro- tection from the government than non-fundamental rights. If the right is fundamental, the government action that encumbers the right is presumptively wrongful, and the government bears the bur- den to show that its action is “narrowly tailored to serve a 4 When a plaintiff contends that executive action violates his substantive-due- process rights, the question is whether the challenged conduct “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846–48 (1998). USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 11 of 30 24-10139 Opinion of the Court 11 compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). We call this level of review strict scrutiny. Lofton v. Sec’y of Dep’t of Child. & Fam. Servs., 358 F.3d 804, 815 (11th Cir. 2004). Although strict scrutiny allows the government to regulate and even abrogate fundamental rights, it ensures that, when the government does so, it must act in a way that fundamental rights receive the respect and protection they are due. In contrast, on the non-fundamental rights track, we only lightly review the challenged government action. We presume the government has acted lawfully, and we reject the plaintiff’s claim so long as the government action is “rationally related to legitimate government interests.” Glucksberg, 521 U.S. at 728. This is rational- basis review. Under it, we sustain the government’s action if “there is any reasonably conceivable state of facts that could provide a ra- tional basis” for it. FCC v. Beach Commcn’s, Inc., 508 U.S. 307, 313 (1993); see Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 488 (1955). So to be clear, that a right is fundamental does not end the inquiry. A right’s fundamental status does not mean the govern- ment can’t regulate it. Indeed, the government can and does con- stitutionally burden fundamental rights when it invokes a compel- ling interest and narrowly tailors its law to further that interest. During the en banc proceedings here, we determined that Henry enjoys a fundamental right to live with his children, despite his conviction. Henry II, 180 F.4th at 1298. That puts us on the USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 12 of 30 12 Opinion of the Court 24-10139 fundamental-rights track. So we must apply strict scrutiny to the Act as applied to Henry. B. The Act fails strict scrutiny as applied to Henry. Because we review the Act on the strict-scrutiny track, Ala- bama bears the burden to show that its action is “narrowly tailored to serve a compelling state interest.” Flores, 507 U.S. at 302. Alabama certainly has a “compelling interest.” Indeed, it “is indisputable ‘that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling.’” Otto v. City of Boca Raton, 981 F.3d 854, 868 (11th Cir. 2020) (quoting New York v. Ferber, 458 U.S. 747, 756–57 (1982)). But “it is not enough for the [State] to identify a compelling interest.” Id. “To survive strict scrutiny,” Alabama “must prove” that Section 15-20A-11(d)(4) furthers “that compelling interest and” is “narrowly tailored to that end.” Id. (cleaned up). Tailoring is especially important in cases like this one, which involve familial rights. After all, the State has no compelling interest in removing children from parents who are in fact competent to love and care for them. See Stanley v. Illinois, 405 U.S. 645, 652 (1972) (“[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.”); Santosky v. Kramer, 455 U.S. 745, 760 (1982) (“[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing errone- ous termination of their natural relationship.”). Three factors guide our determination on whether state ac- tion is sufficiently tailored: overinclusiveness, underinclusiveness, USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 13 of 30 24-10139 Opinion of the Court 13 and the opportunity to enact less restrictive alternatives. See Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 805 (2011) (explaining that com- pelling interests “must be pursued by means that are neither seri- ously underinclusive nor seriously overinclusive”); Dep’t of State v. Muñoz, 602 U.S. 899, 919 (2024) (acknowledging that a burden on a fundamental right “trigger[s]” the government’s “obligation to demonstrate” that its action “is the least restrictive means of serv- ing” its compelling “interest”). The Act fails on all three fronts. A. The Act is overinclusive. A law is overinclusive when it regulates too much conduct. In other words, the law applies to people for whom the govern- ment lacks a compelling interest in regulating. Overinclusive cases present the greatest constitutional concern because the govern- ment abridges constitutional rights without justification. See Zablocki v. Redhail, 434 U.S. 374, 390 (1978) (concluding a statute forbidding marriage without a court order was “substantially over- inclusive” because it possibly prevented individuals, through mar- riage to wealthy spouses, from “improving their ability to satisfy” the prior familial support obligations that Wisconsin claimed to en- act the statute to secure); cf. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“[T]he record does not reveal any rational basis for believing that the Featherston home would pose any spe- cial threat to the city’s legitimate interests.”). Narrow tailoring does not require “perfect tailoring.” Wil- liams-Yulee v. Fla. Bar, 575 U.S. 433, 454 (2015). Yet state action is not narrowly tailored if it advances the state’s compelling interest USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 14 of 30 14 Opinion of the Court 24-10139 in only “some” cases. Stanley, 405 U.S. at 654; Ent. Merchs. Ass’n, 564 U.S. at 804. And that’s a problem with the Act. Alabama asserts that the Act advances its compelling interest by “not giving convicted child sex offenders a ready opportunity to offend again.” But a convic- tion that qualifies under the Act does not alone predict with sub- stantial precision an offender’s likelihood of harming their own child. Nor does such a conviction offer, as Alabama law and our Constitution usually require, “clear and convincing evidence” that the regulated individual “is unsuited or unfit to assume the place of a [parent] in providing a safe and comfortable home . . . .” Ex parte Sullivan, 407 So. 2d 559, 563 (Ala. 1981) (quoting Chandler v. What- ley, 189 So. 751, 753 (1939)); see Santosky, 455 U.S. at 769 (requiring the clear-and-convincing standard of proof to terminate parental rights). At its broadest, the Act covers some crimes that sustain little to no rational inference that a parent is likely to harm their child. For instance, the Act would bar from residing with their child a 19- year-old college freshman convicted of downloading sexually ex- plicit content that their 16-year-old high-school sweetheart sent them. And because the Law operates forever without exception, that categorical bar would remain even if the 19-year-old college freshman later married his high-school sweetheart and fathered a child with her after living decades of a law-abiding life. Alabama offers no justification for treating that person exactly like one who just last week trafficked or raped children. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 15 of 30 24-10139 Opinion of the Court 15 And for at least some of the core conduct the Act targets, the sole fact of a conviction is not sufficiently tailored to advance Ala- bama’s interests in protecting children. The parties hotly contest whether a qualifying conviction, specifically a child-pornography conviction, may adequately stand in for the danger that a parent poses to a child. They do so primarily through expert testimony on the recidivism rates for sex offenders generally and child-por- nography offenders specifically. Cf. United States v. Kebodeaux, 570 U.S. 387, 396 (2013) (acknowledging that, generally, there is “con- flicting evidence” on sex offenders’ recidivism rates). We briefly recount that evidentiary debate, crediting the evidence Alabama marshaled. But even applying our summary-judgment standard of review, Alabama has not shown the Act is narrowly tailored. Alabama relies mostly on three figures to argue that child- pornography offenders recidivate at a high rate and therefore pose a continuing danger to their own children. First, Alabama suggests that within five years of release, an estimated 9.2% to 46% of child- pornography offenders will commit another sex offense. It reaches that estimate by multiplying a five-year sex-offense recidivism rate for child-pornography offenders (4.6%) by its experts’ claim that ac- tual recidivism rates are undercounted at a multiple of two to ten times the reported figures. Second, the State asserts that 50%—and up to 85%—of child-pornography offenders have previously com- mitted a contact offense against a child (meaning an offense involv- ing the sexual molestation of a child). And third, Alabama argues that, for those who have committed a contact offense and have re- cidivated, about a quarter did so even after ten years of living free USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 16 of 30 16 Opinion of the Court 24-10139 in their community. So the risk an offender poses, the State posits, does not decrease over time. Henry disputes the relevance and the accuracy of some of these figures. He counters that Alabama fails to differentiate be- tween child-pornography offenders who have committed a contact offense in the past and those who have not. And Henry’s expert proffered that less than 2% of—that is, not even one in fifty—of- fenders who have only viewed or possessed child pornography, like Henry, commit a future contact offense. Henry also contests the extrapolations the State makes from its estimates of unreported recidivism. Alabama’s unreported- crime-multiplier, Henry’s expert claims, relies on unreported crimes committed by those who have not yet been caught, not re- cidivism rates of those who have been convicted of an offense, like Henry. Henry’s expert also argues that the risk of sexual recidivism halves every five years a person lives in the community as a law- abiding citizen. After around ten to fifteen years, Henry adds, most people who have committed a sex offense are no more likely to commit a new sex offense than are those with a non-sexual criminal history. And for low-risk sex offenders, Henry’s expert points out that it may take only five years to pose a risk that is statistically indistinguishable from that of other non-sexual offenders. Of course, we don’t wade into these factual disputes at the summary-judgment stage. Rather, we must draw all reasonable inferences in favor of the non-movant (here, Alabama). Marbury, USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 17 of 30 24-10139 Opinion of the Court 17 936 F.3d at 1232. But even under the summary-judgment standard, Alabama has not carried its burden. That is so for two reasons. First, none of the figures Alabama proffers show that Henry’s qualifying conviction necessarily makes him and others like him, without more, a danger to their children. The Act doesn’t distinguish between offenders like Henry—who haven’t commit- ted a previous contact offense and appear statistically unlikely to commit one in the future—and offenders who have committed a previous contact offense and who may be more likely to commit another. In other words, Alabama defends its Law by relying on material distinctions the law itself does not make and which do not even apply to offenders in Henry’s shoes. That is a concession of overinclusiveness. To be sure, the premise of Alabama’s position is that many sexual offenses go unreported, so broad legislative categories are necessary to prevent likely contact offenders from recidivating with their own child. But as applied to the Act, that logic just uses a child-pornography conviction as a proxy for offenders who have previously committed a contact offense, even when they haven’t. Then the Act uses the first proxy as a second proxy for the disposi- tive conclusion that the regulated offender poses a threat to their own child. See Stanley, 405 U.S. at 657 (holding, in parental-rights cases, “the determinative issues” are “competency and care”). But this logic—twice removed from Henry’s non-contact situation— falls apart as soon as we look at the record, which offers no direct evidence that child-pornography-only offenders like Henry pose a USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 18 of 30 18 Opinion of the Court 24-10139 danger to their children. In this respect, Section 15-20A-11(d)(4) sweeps with too broad a brush. Second, even if we disregard that error, the overinclusive- ness problems persist. The most relevant statistic the State prof- fered was its first: that 9.2% to 46% of child-pornography offenders will commit another sex offense. That figure raises several questions. For starters, it includes a substantial range because it depends on estimates of the amount of unreported recidivism. That range of uncertainty—a span of about 37 percentage points—is so large that it makes the estimate of recidivism meaningless. Plus, even crediting the highest recidivism rate in that range, as we must in this posture, still more than half the parents the law prevents from residing with their children will not pose a danger to them. Indeed, our sister circuits have determined that a conviction for viewing child-pornography images, without more, does not es- tablish that an offender is a danger to their own child. See, e.g., United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006) (finding “plain error” where a district court barred a child-pornography of- fender from having unsupervised contact with his own daughter where there was “no evidence that he has abused a child”); United States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014) (vacating condi- tions limiting Bear’s ability to reside with his children because, de- spite his prior sex offenses, the record did not show “a danger to his own three children”); United States v. Del Valle-Cruz, 785 F.3d 48, 64 (1st Cir. 2015) (same); United States v. Worley, 685 F.3d 404, 408–09 USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 19 of 30 24-10139 Opinion of the Court 19 (4th Cir. 2012) (same). Of course, any new contact offense is truly a tragedy. But so is depriving a child of a caring, competent, loving parent who presents no danger to the child. And although narrow tailoring does not require “perfect tailoring,” Williams-Yulee, 575 U.S. at 454, it demands more than a coin flip. Other courts have held as much, declaring unconstitutional statutes that terminate parental rights based solely on the fact of a conviction, because they ignored individualized evidence relevant to a parent’s fitness. See, e.g., In re Amanda D., 811 N.E.2d 1237, 1242 (Ill. App. Ct. 2004) (“We conclude that a conviction of aggra- vated battery to a child is not an adequate proxy for unfitness” be- cause it “fails to take into account several things relevant to the ul- timate fitness determination.”), aff’d sub nom. In re D.W., 827 N.E.2d 466 (Ill. 2005). In short, Alabama cannot justify abridging fundamental rights by advancing its compelling state interests in “some” cases. See Stanley, 405 U.S. at 654 (“But all unmarried fathers are not in this category; some are wholly suited to have custody of their chil- dren.”); Ent. Merchs. Ass’n, 564 U.S. at 804 (“[S]ome of the legisla- tion’s effect may indeed be in support of what some parents of the restricted children actually want . . . . [But] [t]his is not the narrow tailoring to ‘assisting parents’ that restriction of First Amendment rights requires.”). And that’s especially so when, as we discuss later, the Act doesn’t even safeguard against those who are danger- ous to their children. Plus, Alabama has other tools at its disposal to protect its children. The Act is fatally overinclusive. USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 20 of 30 20 Opinion of the Court 24-10139 B. Alabama’s Law is underinclusive. The Act is also underinclusive. A law is underinclusive if it leaves unregulated similar conduct that also threatens the compel- ling interest that the state action purports to advance. Reed v. Town of Gilbert, 576 U.S. 155, 172 (2015). We assess a state action’s un- derinclusiveness because a “woefully underinclusive” act may un- dermine our belief that the government truly wishes to advance its asserted interest. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); see City of Ladue v. Gilleo, 512 U.S. 43, 52–53 (1994) (ex- plaining underinclusiveness “diminish[es] the credibility of the gov- ernment’s rationale” for regulating fundamental rights). Underinclusiveness doesn’t raise the same constitutional concerns as does overinclusiveness. And some underinclusive sit- uations may arise, as here, when no reasonable person would doubt that the government is genuine in its efforts to advance its asserted interest. Plus, the government “need not address all as- pects of a problem in one fell swoop.” Williams-Yulee, 575 U.S. at 449. But even so, the state bears the burden of identifying “good reason[s]” for “singl[ing] out” the conduct it did regulate. TikTok Inc. v. Garland, 604 U.S. 56, 75 (2025). And to the extent the gov- ernment leaves unregulated some conduct that may undermine its asserted interest, that fact may hamper the government’s ability to disprove the viability of proffered less restrictive alternatives. The Act is puzzlingly underinclusive. The statute doesn’t prohibit a covered offender from unsupervised visitation with “his or her child at the residence of the criminal sex offender where the USCA11 Case: 24-10139 Document: 125-1 Date Filed: 09/29/2026 Page: 21 of 30 24-10139 Opinion of the Court 21 child does not also reside.” S.A.N. v. S.E.N., 995 So. 2d 175, 178 (Ala. Civ. App. 2008). That is, it “allows every quali