Niya Kenny v. Alan Wilson , 885 F.3d 280 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1367
NIYA KENNY, on behalf of herself and all others similarly situated; TAUREAN
NESMITH, on behalf of himself and all others similarly situated; GIRLS ROCK
CHARLESTON INC, on behalf of themselves and all others similarly situated;
D.S., by and through her next of kin Juanita Ford, on behalf of herself and all others
similarly situated; S.P., by and through her next of kin Melissa Downs, on behalf of
herself and all others similarly situated,
Plaintiffs − Appellants,
v.
ALAN WILSON, in his official capacity as Attorney General of South Carolina, on
behalf of himself and others similarly situated; J. ALTON CANNON, JR., in his
official capacity as the Sheriff of Charleston County, SC; on behalf of himself and
others similarly situated; GREGORY G. MULLEN, in his official capacity as the
Chief of the Police Department of the City of Charleston, SC; on behalf of himself
and others similarly situated; EDDIE DRIGGERS, JR., in his official capacity as the
Chief of the Police Department of the City of North Charleston, SC; on behalf of
himself and others similarly situated; CARL RITCHIE, in his official capacity as the
Chief of the Police Department of the City of Mt. Pleasant, SC; on behalf of himself
and others similarly situated; LEON LOTT, in his official capacity as the Sheriff of
Richland County, SC; on behalf of himself and others similarly situated; W.H.
HOLBROOK, in his official capacity as the Chief of the Police Department of the
City of Columbia, SC; on behalf of himself and others similarly situated; STEVE
LOFTIS, in his official capacity as the Sheriff of Greenville County, SC; on behalf
of himself and others similarly situated; KEN MILLER, in his official capacity as
the Chief of the Police Department of the City of Greenville, SC; on behalf of himself
and others similarly situated; LANCE CROWE, in his official capacity as the Chief
of the Police Department of the City of Travelers Rest, SC; on behalf of himself and
others similarly situated; MICHAEL D. HANSHAW, in his official capacity as
Interim Chief of the Police Department of the City of Simpsonville, SC; on behalf of
himself and others similarly situated; M. BRYAN TURNER, in his official capacity
as the Chief of the Police Department of the City of Mauldin, SC; on behalf of
himself and others similarly situated; DAN REYNOLDS, in his official capacity as
the Chief of the Police Department of the City of Greer, SC; on behalf of himself and
others similarly situated; A. KEITH MORTON, in his official capacity as the Chief
of the Police Department of the City of Fountain Inn, SC; on behalf of himself and
others similarly situated,
Defendants – Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. C. Weston Houck, Senior District Judge. (2:16-cv-02794-CWH)
Argued: December 6, 2017 Decided: March 15, 2018
Before DUNCAN and DIAZ, Circuit Judges, and Paula XINIS, United States District
Judge for the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which
Judge Duncan and Judge Xinis joined.
ARGUED: Sarah Hinger, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
INC., New York, New York, for Appellants. James Emory Smith, Jr., OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina for
Appellees Alan Wilson, M. Bryan Turner, and A. Keith Morton; Sandra J. Senn, SENN
LEGAL, LLC, Charleston, South Carolina, for Appellees J. Alton Cannon, Jr., Gregory G.
Mullen, and Eddie Driggers, Jr. ON BRIEF: Dennis D. Parker, Lenora M. Lapidus, Galen
L. Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York,
New York; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF SOUTH CAROLINA, Charleston, South Carolina, for Appellants. Alan Wilson,
Attorney General, Robert D. Cook, Solicitor General, Columbia, South Carolina, for
Appellees Alan Wilson, M. Bryan Turner, Lance Crowe, A. Keith Morton and Michael D.
Hanshaw. W. Michael Hemlepp, Jr., CITY OF COLUMBIA ATTORNEY’S OFFICE,
Columbia, South Carolina, for Appellee W.H. Holbrook. Anne R. Culbreath, WILLSON
JONES CARTER AND BAXLEY, Greenville, South Carolina, for Appellee Steve Loftis.
Michael S. Pitts, Logan M. Wells, CITY OF GREENVILLE, OFFICE OF THE CITY
ATTORNEY, Greenville, South Carolina, for Appellee Ken Miller. Andrew F.
Lindemann, DAVIDSON AND LINDEMANN PA, Columbia, South Carolina, for
Appellee Carl Ritchie. Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON and
LINDEMANN PA, Columbia, South Carolina, for Appellee Leon Lott.
2
DIAZ, Circuit Judge:
In this case, a group of former and current South Carolina students and a nonprofit
organization filed suit under 42 U.S.C. § 1983 challenging S.C. Code Ann. § 16-17-420
(the “Disturbing Schools Law”) and S.C. Code Ann. § 16-17-530 (the “Disorderly Conduct
Law”) as unconstitutionally vague. The district court dismissed the complaint for lack of
standing. It reasoned that plaintiffs’ fear of future arrest and prosecution under the two
statutes does not rise above speculation and thus does not constitute an injury in fact.
But at least some of the named plaintiffs do not rely on conjecture or speculation,
but rather, on the fact that they attend school where they were previously arrested and
criminally charged under the two South Carolina statutes, and they don’t know which of
their actions at school will be interpreted to violate the statutes in the future. Further,
plaintiffs allege that the two laws chill their exercise of free expression, forcing them to
refrain from exercising their constitutional rights or to do so at the risk of arrest and
prosecution. In our view, that is sufficient to plead both a future and ongoing injury in fact.
We therefore vacate the district court’s judgment and remand for further proceedings.
I.
Before turning to the merits, we set out the relevant statutes. We then describe the
plaintiffs involved, the allegations of the complaint, and the basis for the district court’s
decision.
A.
The Disturbing Schools Law, which all plaintiffs challenge, states:
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(A) It shall be unlawful:
(1) for any person willfully or unnecessarily (a) to interfere with or to
disturb in any way or in any place the students or teachers of any school
or college in this State, (b) to loiter about such school or college premises
or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises
or (b) loiter around the premises, except on business, without the
permission of the principal or president in charge.
S.C. Code Ann. § 16-17-420(A). 1
The Disorderly Conduct Law, which two plaintiffs (D.S. and S.P.) challenge on
behalf of a class of elementary and secondary public school students, states:
Any person who shall (a) be found on any highway or at any public place or
public gathering in a grossly intoxicated condition or otherwise conducting
himself in a disorderly or boisterous manner, (b) use obscene or profane
language on any highway or at any public place or gathering or in hearing
distance of any schoolhouse or church . . . shall be deemed guilty of a
misdemeanor and upon conviction shall be fined not more than one hundred
dollars or be imprisoned for not more than thirty days.
S.C. Code Ann. § 16-17-530.
B.
Plaintiffs include four individuals and one organization—minors D.S. and S.P.,
Niya Kenny, Taurean Nesmith, and Girls Rock Charleston. D.S. and S.P. represent the
proposed class of elementary and secondary public school students in South Carolina.
Girls Rock is suing on behalf of its members and itself.
1
The offense is a misdemeanor punishable by up to ninety days in jail or a fine of
up to $1,000. S.C. Code Ann. § 16-17-420(B).
4
D.S. and S.P are high school students. D.S. (who is black and has learning
disabilities) was charged with violating the Disturbing Schools Law “after becoming
involved in a physical altercation which she did not initiate and in which she was the only
person who sustained an injury, a lump on her head.” Compl. ¶ 101. S.P. (who is white
and suffers from mood and conduct disabilities) was charged with violating the Disorderly
Conduct Law after she cursed at a student who had been teasing her and refused to leave
the library with the principal as instructed.
Kenny and Nesmith are young adults who were previously arrested and charged
with violating the Disturbing Schools Law when they expressed concerns about police
conduct. When Kenny (who is black) was in high school, she saw a school resource officer
pull a female student from her desk, drag her on the floor, and handcuff her. Kenny
“attempted to document the incident and called out for someone to do something to stop
the violent treatment of her classmate.” Compl. ¶ 84. In response, Kenny was arrested and
charged with violating the Disturbing Schools Law. The experience left Kenny scared and
humiliated, and she withdrew from high school. She later obtained her G.E.D.
Nesmith (who is also black) attends Benedict College. He alleges that a campus
police officer arrested him on suspicion of violating both statutes after he complained that
the officer was engaged in racial profiling and questioned the officer’s request that he
produce identification.
Girls Rock is a nonprofit organization that “provides mentorship, music and arts
education, and leadership development to young people in Charleston, South Carolina.”
Compl. ¶ 22. Girls Rock “operates an afterschool program serving at-risk youth” and is
5
“guided by core principles that include challenging criminalization.” Compl. ¶ 22. The
complaint describes two members of Girls Rock—K.B. and D.D.
K.B. is Latina and was charged with violating the Disturbing Schools Law at age
thirteen after she arrived late to gym class and loudly protested when she was asked to
leave and go to the “tardy sweep” room. Compl. ¶ 94. K.B. was sentenced to probation
and referred to Girls Rock. When K.B. returned to school, she was placed in a program
called “Twilight,” through which “she was provided no more than three hours of computer-
based education per day.” Compl. ¶ 95. The Twilight program “did not provide access to
the courses necessary to obtain a high school diploma.” Compl. ¶ 95.
D.D. is black and was charged with violating the Disturbing Schools Law at her
Charleston middle school after she was sent out of class for talking and then proceeded to
speak with another student in the hallway. She too was placed on probation and ordered
to participate in the Twilight program.
C.
The plaintiffs’ complaint outlines two § 1983 claims. First, all plaintiffs challenge
the Disturbing Schools Law as unconstitutionally vague on its face and, second, D.S. and
S.P. also challenge the Disorderly Conduct Law as unconstitutionally vague as applied to
elementary and secondary public school students in South Carolina. Both claims allege (in
sum and substance) that the statutes violate plaintiffs’ right to due process under the
Fourteenth Amendment because they fail to provide sufficient notice of prohibited conduct
and encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461
U.S. 352, 357 (1983).
6
Plaintiffs claim that both statutes criminalize behavior that is indistinguishable from
typical juvenile behavior, which schools address on a daily basis without resorting to the
criminal justice system. For example, students, including some as young as seven, have
been charged under the statutes for cursing, refusing to follow directions, or getting in a
physical altercation that doesn’t result in any injuries. The complaint further alleges that
some students are arrested and charged simply for expressing concerns about police
conduct.
According to plaintiffs, criminal charges under the two statutes are among the
leading reasons young people enter the juvenile justice system in South Carolina. Between
2010 and 2016, over 9,500 young people throughout the state were referred to the
Department of Juvenile Justice under the Disturbing Schools Law, a statistic that excludes
those students seventeen and older who are charged and prosecuted as adults.
Plaintiffs also allege that students arrested for violating the statutes are less likely to
graduate and more likely to feel stigmatized and afraid, making it difficult to engage in the
classroom. When a student’s behavior is characterized as “criminal,” the school is likely
to impose a harsher punishment, diminishing the student’s educational opportunities
through expulsion, suspension, or placement in alternative settings that do not offer
coursework necessary to graduate.
Plaintiffs claim that the statutes are enforced in a discriminatory manner, leaving
racial minorities and students with disabilities especially vulnerable. In 2014-2015 black
students in South Carolina were nearly four times as likely to be charged under the
Disturbing Schools Law compared to their white classmates. In Charleston County, a
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charge under the Disturbing Schools Law was the number one reason young people entered
the juvenile justice system and black students were more than six times as likely to be
charged for the offense compared to white students. Plaintiffs allege that such racial
disparities in discipline cannot be explained by differences in behavior among students of
different races.
The individual plaintiffs and members of Girls Rock—all of whom have previously
been charged under one of the two statutes—fear future arrest if, while on or around the
grounds of a school, their actions are interpreted to fall under any of the broad terms of the
statutes. Additionally, Girls Rock alleges that, as an organization, it is “substantially
burdened in its mission by the continued practice of charging students” under the
Disturbing Schools Law. Compl. ¶ 23. Girls Rock volunteers attend hearings with its
members and present testimony on their behalf. These hearings divert time and resources
away from “developing programming and providing direct services to young people and
attending to administrative business necessary to sustain the operations of the organization,
such as writing grant proposals and conducting fundraising activities.” Compl. ¶ 105.
Plaintiffs seek: (1) a declaratory judgment that the statutes violate their right to due
process under the Fourteenth Amendment; (2) a preliminary and permanent injunction
enjoining defendants from enforcing the laws; and (3) an order enjoining defendants from
considering or retaining any of plaintiffs’ records relating to the Disturbing Schools or
Disorderly Conduct charges filed against them, except as would be permissible following
expungement under S.C. Code Ann. § 17-1-40.
D.
8
The district court dismissed plaintiffs’ claims for lack of standing. Specifically, the
district court held that D.S., S.P., Kenny, Nesmith, and Girls Rock all lacked standing
because allegations of a fear or risk of future arrest do not show “imminent harm, an
intention to engage in conduct proscribed by the challenged laws, or a credible threat of
prosecution.” J.A. 542. The court held that the plaintiffs failed to “plead a likelihood of
future injury that is certainly impending and not merely possible.” J.A. 543. The court
also held that Girls Rock lacked organizational standing because it did not face imminent
harm and its interests were outside the “zone of interests” protected by the Due Process
Clause. J.A. 545‒47. This appeal followed.
II.
We review de novo a district court’s dismissal of a case for lack of standing. David
v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). At least one plaintiff must demonstrate
standing for each claim and form of requested relief. Town of Chester v. Laroe Estates,
Inc., 137 S. Ct. 1645, 1651 (2017). Thus, we must determine whether plaintiffs have
standing to bring their two claims and to request (1) a declaratory judgment and (2) a
preliminary and permanent injunction enjoining defendants from enforcing the laws. 2 We
2
We do not consider standing issues with respect to the third form of requested
relief—to enjoin defendants from considering or retaining plaintiffs’ criminal records—
because the district court did not specifically address the issue. This is the only form of
relief in which each plaintiff would need to establish standing because one plaintiff does
not have standing to request that another plaintiff’s records be expunged. See Wikimedia
Found. v. Nat’l Sec. Agency, 857 F.3d 193, 216 (4th Cir. 2017) (holding each plaintiff must
allege injury in fact when plaintiffs seek individualized, instead of identical, relief). But
9
accept the facts of the complaint as true as we would in context of a Rule 12(b)(6) challenge
because defendants’ motions to dismiss are facial challenges to standing that do not dispute
the jurisdictional facts alleged in the complaint. See Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982).
To establish Article III standing, a plaintiff “must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct . . . and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
The district court here concluded that plaintiffs’ complaint failed to allege an injury in fact.
The injury-in-fact requirement ensures that plaintiffs have a “personal stake in the
outcome of the controversy.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Injury in fact is
“an invasion of a legally protected interest” that is “concrete and particularized” and “actual
or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548. “An allegation
of future injury may suffice if the threatened injury is certainly impending, or there is a
substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334, 2341 (2014) (internal quotation marks omitted). But because plaintiffs here seek
declaratory and injunctive relief, they must establish an ongoing or future injury in fact.
O’Shea v. Littleton, 414 U.S. 488, 495‒96 (1974) (“Past exposure to illegal conduct does
not in itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”).
because we are at the motion to dismiss stage, we see no need to dismiss this request for
relief when the underlying jurisdictional facts have not been fully developed.
10
There are two ways that plaintiffs’ allegations of a fear and risk of future arrest can
satisfy the injury-in-fact requirement for prospective relief. First, there is a sufficiently
imminent injury in fact if plaintiffs allege “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there exists
a credible threat of prosecution thereunder.” Babbitt v. Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979). “[I]t is not necessary that [a plaintiff] first expose himself to actual
arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise
of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). Separately,
there is an ongoing injury in fact if plaintiffs make a “sufficient showing of self-censorship,
which occurs when a claimant is chilled from exercising his right to free expression.”
Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (internal quotation marks omitted).
As we explain, we are satisfied that plaintiffs’ allegations satisfy both tests.
A.
Consistent with the Babbitt standard for alleging injury, plaintiffs S.P., D.S., and
Nesmith say that they are students who fear that their actions will be interpreted to come
within the broad terms of the statutes. They attend school without knowing which of their
actions could lead to a criminal conviction, which deprives them of notice of prohibited
conduct and “may authorize and even encourage arbitrary and discriminatory enforcement”
in violation of their right to due process. See City of Chicago v. Morales, 527 U.S. 41, 56
(1999); see also Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 n.4 (2d Cir. 2015)
(recognizing plaintiffs’ intended conduct—selling and carrying a variety of folding
knives—was affected with a constitutional due process interest in notice of prohibited
11
conduct, but proscribed by statute, because plaintiffs couldn’t determine which knives were
prohibited under a New York law). Additionally, attending school inevitably involves
expressive conduct and these three plaintiffs allege that the statutes restrict their ability “to
engage with school,” “speak out against abuses,” or “participate in conversations about
policing,” and therefore limit their right to free speech under the First Amendment. Compl.
¶¶ 9, 2, 80‒90.
Turning to the second part of the Babbitt standard, there is a credible threat of future
enforcement so long as the threat is not “imaginary or wholly speculative,” Babbitt, 442
U.S. at 302, “chimerical,” Steffel, 415 U.S. at 459, or “wholly conjectural,” Golden v.
Zwickler, 394 U.S. 103, 109 (1969). “[P]ast enforcement against the same conduct is good
evidence that the threat of enforcement is not chimerical.” Driehaus, 134 S. Ct. at 2345
(internal quotation marks omitted). Threat of prosecution is especially credible when
defendants have not “disavowed enforcement” if plaintiffs engage in similar conduct in the
future. Id. Furthermore, there is a presumption that a “non-moribund statute that facially
restricts expressive activity by the class to which the plaintiff belongs presents such a
credible threat.” North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir.
1999) (internal quotation marks omitted). “This presumption is particularly appropriate
when the presence of a statute tends to chill the exercise of First Amendment rights.” Id.
We find that S.P. and D.S. face a credible threat of future arrest or prosecution under
the Disturbing Schools Law and Disorderly Conduct Law, and that Nesmith faces a
credible threat of arrest or prosecution under the Disturbing Schools Law because these
three plaintiffs regularly attend schools where they allege there may be future encounters
12
with school resource officers or other law enforcement; they have been prosecuted under
the laws in the past; and the defendants have not disavowed enforcement if plaintiffs
engage in similar conduct in the future. Further, plaintiffs allege that black students and
students with disabilities are more likely to be criminally charged with violating the
statutes. S.P is disabled, Nesmith is black, and D.S. is both disabled and black. Thus, the
threat of enforcement is particularly credible with respect to these three plaintiffs.
Moreover, the presumption of a credible threat applies. Plaintiffs plausibly allege
that the two statutes are regularly enforced against students like S.P., D.S., and Nesmith;
they restrict students’ expressive activity, including anything perceived as “disturbing,”
“obnoxious,” “disorderly,” or “boisterous”; and they tend to chill students’ engagement in
the classroom as well as their ability to speak out against police and participate in
conversations about policing. As a result, we may presume that, as students in South
Carolina, S.P., D.S., and Nesmith face a credible threat of prosecution. 3
3
The injury-in-fact element is also “commonly satisfied by a sufficient showing of
self-censorship, which occurs when a claimant is chilled from exercising his right to free
expression.” Cooksey, 721 F.3d at 235. Although “[s]ubjective or speculative accounts of
such a chilling effect are not sufficient . . . a claimant need not show he ceased those
activities altogether to demonstrate an injury in fact.” Id. at 236 (quoting Benham v. City
of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)). Instead, “[g]overnment action will be
sufficiently chilling when it is likely to deter a person of ordinary firmness from the
exercise of First Amendment rights.” Id. (same).
Here, D.S., S.P., and Nesmith plausibly allege that the statutes have a chilling effect
on their free expression. Specifically, they contend that it’s more difficult for students who
fear arrest “to engage with school” and that the statutes chill “the ability of students to
speak out against abuses and to participate in conversations about policing.” Compl. ¶¶ 2,
9. We think that sufficient to allege an injury in fact.
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B.
The district court concluded that there was no credible threat of prosecution because
plaintiffs’ future injuries are just as speculative and hypothetical as the alleged future injury
in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). We disagree.
In Lyons, the plaintiff sought to enjoin the Los Angeles Police Department’s use of
chokeholds when an officer faces no threat of deadly force. 461 U.S. at 98. The plaintiff
had previously been handcuffed and choked by a police officer during the course of a traffic
stop, but the court held that “[a]bsent a sufficient likelihood that he will again be wronged
in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los
Angeles.” Id. at 111.
However, Lyons did not involve a pre-enforcement challenge to a statute or any
allegation of a chilling effect on the plaintiff’s exercise of his First Amendment rights. The
plaintiff there was seeking injunctive relief based on the conduct of a single police officer
during a single traffic stop. In fact, the Court in Lyons explained that there would have
been an actual controversy if Lyons had “allege[d] that he would have another encounter
with the police” and “that the City ordered or authorized police officers to act in such
manner.” 461 U.S. at 105‒06.
That is precisely what plaintiffs allege here—specifically, that there will be future
encounters with officers at school and that the statutes in question authorize defendants to
violate their rights to due process and free speech. Relatedly, unlike Lyons, D.S., S.P., and
Nesmith allege they will be subject to arrest or prosecution for engaging in activity
14
protected by the Constitution. See Hernandez v. Cremer, 913 F.2d 230, 234 (5th Cir. 1990)
(“Hernandez (unlike Lyons) was engaged in an activity protected by the Constitution.”).
The defendants say that the plaintiffs cannot satisfy the Babbitt test because the
South Carolina courts have provided limiting constructions that clarify the reach of the
statutes. See City of Landrum v. Sarratt, 572 S.E.2d 476 (S.C. Ct. App. 2002) (interpreting
the Disorderly Conduct Law); In re Amir X.S., 639 S.E.2d 144 (S.C. 2006) (interpreting
the Disturbing Schools Law). Again, we do not agree.
Sarratt was an appeal from a criminal conviction. 572 S.E.2d at 477. The question
was whether Sarratt, who had yelled profanities at his mother in a municipal parking lot,
had violated the Disorderly Conduct Law. Id. The South Carolina Court of Appeals
accepted the lower court’s determination that profane language alone can’t constitute a
violation of the Disorderly Conduct Law in light of the First Amendment and “must be
accompanied by fighting words or other behavior such as gross intoxication.” Id. The
court then found that Sarratt had used fighting words because he yelled loudly and directed
vulgarities at his mother, and it therefore upheld his conviction.
Sarratt clarifies that profane language alone cannot constitute a violation of the law,
but it says nothing at all about how to interpret other vague phrases in the Disorderly
Conduct Law like “conducting [oneself] in a disorderly or boisterous manner” or even what
conduct must accompany profane language for there to be a criminal conviction. Thus, it
remains plausible that the Disorderly Conduct Law is vague, particularly as applied to
elementary and secondary students (who are in many ways disorderly or boisterous by
nature).
15
In re Amir is also not dispositive as to whether the Disturbing Schools Law, as
interpreted by the state court, infringes on plaintiffs’ rights to due process and free
expression. There, the plaintiff challenged the Disturbing Schools Law as
unconstitutionally vague and overbroad in violation of the First Amendment. In re Amir,
639 S.E.2d at 145. The Supreme Court of South Carolina did not reach the merits of the
vagueness challenge, holding instead that the statute was not overly broad because it draws
“the very same constitutional line drawn by Tinker and its progeny.” Id. at 150.
Tinker held that a school district could not punish students for wearing black
armbands to school in protest of the Vietnam War because there was no “material
interference” with school activities. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 514 (1969). The Tinker Court explained that “conduct by the student, in class or
out of it, which for any reason—whether it stems from time, place, or type of behavior—
materially disrupts classwork or involves substantial disorder or invasion of the rights of
others is, of course, not immunized by the constitutional guarantee of freedom of speech.”
Id. at 513.
As for Tinker’s progeny, the primary case discussed in In re Amir (Grayned v. City
of Rockford) involved a city ordinance prohibiting a person, while on grounds adjacent to
a building in which a school is in session, from willfully making a noise or diversion that
disturbs the peace or good order of the school session. 408 U.S. 104, 107‒08 (1972). The
Court there held the ordinance was a reasonable time, place, manner regulation and thus
not overbroad. Id. at 116‒17. It also held that “[a]lthough the question is close,” the
ordinance was not impermissibly vague because it forbid “willful activity at fixed times—
16
when school is in session—and at a sufficiently fixed place—‘adjacent’ to the school.” Id.
at 109‒11.
Unlike the school regulation in Tinker or the city ordinance in Grayned, the
Disturbing Schools Law is a criminal law that applies to all people who in “any way or in
any place” willfully or unnecessarily disturb students or teachers of any school or college.
S.C. Code Ann. § 16-17-420(A)(1). We note also that both In re Amir and Tinker are cases
addressing overbreadth challenges; neither consider the separate question of whether a
statute’s prohibitions are unconstitutionally vague and allow for arbitrary or discriminatory
enforcement. In short, we do not think these cases foreclose the plaintiffs’ claims here.
Finally, defendants say that plaintiffs fail to allege an intent to engage in a specific
course of conduct proscribed by the statutes. But it is precisely because the statutes are so
vague that plaintiffs can’t be more specific. Plaintiffs allege that they can be criminally
prosecuted for just about any minor perceived infraction and that they can’t predict the type
of conduct that will lead to an arrest.
In any event, plaintiffs don’t need to allege a specific intent to violate the statutes
for purposes of standing. In Babbitt, for example, a farmworkers’ union and others sought
declaratory judgment that Arizona’s farm labor statute was unconstitutional, and requested
an injunction against its enforcement. 442 U.S. at 289. In particular, the union claimed
that the statute’s provision limiting union publicity directed at consumers of agricultural
products “unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of
consumer appeals.” Id. at 301.
17
The Court there held that the union’s challenge “plainly pose[d] an actual case or
controversy” because even though the union did “not plan to propagate untruths” as
prohibited by the statute, the union nevertheless contended “that erroneous statement is
inevitable in free debate.” Id. (internal quotation marks omitted). In other words, it was
enough that the union alleged an intent to engage in conduct that would inevitably—albeit
incidentally—violate the statute. Likewise, plaintiffs here contend that behavior perceived
as “obnoxious” or “boisterous” is inevitable on school grounds.
III.
For the reasons given, we conclude that S.P., D.S., and Nesmith’s allegations are
sufficient to establish an injury in fact. 4 We therefore vacate the district court’s judgment
and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
4
Because S.P., D.S., and Nesmith satisfy the injury-in-fact requirement, we need
not decide whether Kenny or Girls Rock have also established an injury in fact. Whether
the claims alleged by these plaintiffs survive further analysis is a matter we leave to the
district court.
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