Krystal Johnson v. Jesse Quattlebaum

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2133

KRYSTAL JOHNSON,

Plaintiff – Appellant,

JESSE QUATTLEBAUM, in his individual and official
capacities; TOWN OF SALUDA; HONORABLE ALAN WILSON, in his
official capacity,

Defendants – Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Anderson. Bruce H. Hendricks, District
Judge. (8:14-cv-03751-MGL-JDA)

Argued: September 21, 2016 Decided: November 2, 2016

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Keenan and Judge Diaz joined.

ARGUED: Howard Walton Anderson III, LAW OFFICE OF HOWARD W.
ANDERSON III, LLC, Pendleton, South Carolina, for Appellant.
Eugene Matthews, RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia,
South Carolina, for Appellees. ON BRIEF: Sheila M. Bias,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina;
Alan Wilson, Attorney General, Robert D. Cook, Solicitor
General, J. Emory Smith, Jr., Deputy Solicitor General, OFFICE
OF THE SOUTH CAROLINA ATTORNEY GENERAL, Columbia, South
Carolina, for Appellee Honorable Alan Wilson; Michael S. Pauley,
THE PAULEY LAW FIRM, LLC, Lexington, South Carolina, for
Appellees Jesse Quattlebaum and Town of Saluda.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:

Krystal Johnson (“Johnson”) challenges the

constitutionality of a South Carolina statute that prohibits the

“use [of] obscene or profane language” within “hearing distance

of any schoolhouse or church.” S.C. Code § 16-17-530(b).

Finding that an authoritative state court decision sufficiently

narrowed the statute to cover only unprotected speech, and that

it was not unconstitutionally vague, the district court

dismissed her claims for declaratory and injunctive relief. For

the reasons that follow, we affirm.

In March 2014, Johnson summoned police to a house she was

visiting in the Town of Saluda, South Carolina, seeking

assistance retrieving her car keys from a family member. The

house to which Officer Jesse Quattlebaum (“Quattlebaum”) and

another officer responded was located within 50 to 60 yards of a

local church. When the officers arrived, Johnson allegedly

exclaimed, “[t]his is some motherfucking shit,” J.A. 24, and

Quattlebaum placed her under arrest.

In July 2014, Quattlebaum prosecuted Johnson in Saluda

Municipal Court for violating a provision of South Carolina’s

public disorderly conduct statute, S.C. Code Section 16-17-

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530(b) (“the Statute”). 1 The Statute provides that a person is

guilty of a misdemeanor if they “use obscene or profane language

on any highway or at any public place or gathering or in hearing

distance of any schoolhouse or church.” S.C. Code § 16-17-

530(b). At trial, Quattlebaum testified both as to the words

Johnson used and the distance from the church. The trial court

granted Johnson’s motion for a directed verdict, ruling that

Johnson’s speech did not qualify as “profane language” under the

Statute. J.A. 27.

In September 2014, Johnson filed this complaint in the

United States District for the District of South Carolina,

alleging four causes of action, only one of which--Count IV--is

at issue in this appeal. Count IV alleged that the Statute is

unconstitutionally overbroad and vague. Johnson sought

declaratory and injunctive relief under Ex parte Young, 209 U.S.

123 (1908), and 42 U.S.C. § 1983 against Quattlebaum and South

Carolina Attorney General Alan Wilson (“Wilson”). The district

court granted Wilson’s motion to dismiss Count IV and denied

Johnson’s motion for summary judgment on Count IV, concluding

1 In South Carolina, the state supreme court has “approved
the practice of allowing law enforcement officers to prosecute
misdemeanor cases in magistrate’s and municipal court.”
Easley v. Cartee, 424 S.E.2d 491, 492 (S.C. 1992).

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that the Statute is not unconstitutionally overbroad or vague on

its face.

II.

We review the district court’s granting of a motion to

dismiss and denial of summary judgment de novo. Johnson v. Am.

Towers, LLC, 781 F.3d 693, 706 (4th Cir. 2015); Francis v. Booz,

Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006).

In considering a constitutional challenge, we bear in mind

that “[e]very statute is presumed to be constitutional.” United

States v. Bollinger, 798 F.3d 201, 207 (4th Cir. 2015)

(alteration in original) (quoting Munn v. Illinois, 94 U.S. 113,

123 (1876)), cert. denied, 136 S. Ct. 2448 (2016). On a facial

challenge to a state statute, this court “must take the statute

as though it read precisely as the highest court of the State

has interpreted it.” Kolender v. Lawson, 461 U.S. 352, 355 n.4

(1983) (quoting Wainwright v. Stone, 414 U.S. 21, 22–23 (1973))

(internal quotation mark omitted). If there is no authoritative

precedent from the state supreme court, this court may look to

an intermediate appellate court’s construction of the statute.

Gooding v. Wilson, 405 U.S. 518, 525 n.3 (1972); see also Vill.

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 494 n.5 (1982) (“In evaluating a facial challenge to a

state law, a federal court must, of course, consider any

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limiting construction that a state court or enforcement agency

has proffered.”).

III.

For the reasons that follow, we first conclude that the

Statute reaches only speech unprotected by the First Amendment

and is therefore not unconstitutionally overbroad. Next, we

conclude that the Statute is not impermissibly vague under the

Due Process Clause of the Fourteenth Amendment because it

sufficiently defines the conduct it proscribes.

Under the First Amendment, “a law may be invalidated as

overbroad if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473

(2010) (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 n.6 (2008)). On a facial overbreadth

challenge, “a court’s first task is to determine whether the

enactment reaches a substantial amount of constitutionally

protected conduct. If it does not, then the overbreadth

challenge must fail.” Vill. of Hoffman Estates, 455 U.S.

at 494. Because the South Carolina Supreme Court has not

authoritatively construed the provision, we look to the South

Carolina Court of Appeals for guidance in determining whether

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the Statute reaches a substantial amount of constitutionally

protected conduct. Gooding, 405 U.S. at 527 n.3.

In City of Landrum v. Sarratt, 572 S.E.2d 476 (S.C. Ct.

App. 2002), the Court of Appeals reviewed a conviction under the

Statute in the context of facts not unlike those presented here.

Sarratt was arrested for “yelling profanities” at two family

members in a municipal parking lot. 2 572 S.E.2d at 477. In

appealing his conviction, he argued that, in light of the First

Amendment, the Statute cannot criminalize profane language

absent fighting words. The Court of Appeals recognized that the

First Amendment erects a barrier to speech restrictions and

analyzed what kind of speech constitutes unprotected fighting

words. Id. at 477–79. The court concluded that, in the context

and manner in which they were uttered, Sarratt’s curse words

constituted fighting words. Id. at 479. It therefore upheld

his conviction. Id.

Johnson does not dispute that Sarratt construed the Statute

to require fighting words to sustain a conviction. Appellant’s

Br. at 14. Rather, she urges us to disregard that narrowing

construction. She contends that Sarratt is not authoritative

because it (1) conflicts with South Carolina Supreme Court

2Sarratt used “the ‘f’ word,” and also called a man a
“crack head” and the man’s mother a “bitch.” 572 S.E.2d at 477.

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precedent, (2) did not receive the tacit approval of the South

Carolina Supreme Court through denial of a petition for

certiorari, and (3) sustains a conviction for constitutionally

protected speech. After reviewing each argument in turn, we

find no compelling reason to reject Sarratt.

First, Johnson argues that Sarratt cannot be authoritative

because it conflicts with two prior South Carolina Supreme Court

decisions, State v. Roper, 260 S.E.2d 705 (S.C. 1979), and

Georgetown v. Scurry, 73 S.E. 353 (S.C. 1912). We disagree.

Roper concerned an evidentiary issue, and the court did not

need to consider the Statute’s constitutionality. In Roper,

officers arrested the defendants for violating the Statute when

they “shout[ed] profanities” at the officers who pulled them

over. 260 S.E.2d at 706. The defendants argued that evidence

obtained after their arrest should be excluded because the

officers lacked probable cause to arrest them under the Statute,

which they argued is unconstitutionally overbroad. Id. The

court held that, even assuming the Statute was

unconstitutionally overbroad, the officers had probable cause to

arrest the defendants because the officers acted in good faith

pursuant to a presumptively valid statute. Id. at 707. Sarratt

is thus not inconsistent with Roper.

Nor does the South Carolina Supreme Court’s decision in

Scurry undermine Sarratt. In Scurry, a case decided three

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decades before the United States Supreme Court officially

recognized the fighting words doctrine, the South Carolina

Supreme Court considered a conviction under a local ordinance

that prohibited, among other things, “using any profane or

obscene language, to the annoyance of any citizen.” 260 S.E.2d

at 353. The Scurry court defined profane language as “language

irreverent toward God or holy things.” Id. at 354. The court

did not mention the First Amendment or suggest any

constitutional concerns with the ordinance at issue. Scurry’s

definition of “profane language” applied to a different

enactment than the one under review here. And Sarratt

appropriately narrowed the definition in the Statute in light of

First Amendment concerns. Scurry therefore does not affect

Sarratt’s precedential value. 3

3
The two supplemental cases Johnson submitted interpreting
a prior version of the Statute also do not alter our conclusion
about Sarratt. In State v. Hanapole, 178 S.E.2d 247 (S.C.
1970), the South Carolina Supreme Court ruled that the trial
court should have directed a verdict in favor of several
protesters who were charged with violating the Statute, but as
to whom there was no evidence they “used vulgar or obscene
language or conducted themselves in a disorderly or boisterous
manner.” 178 S.E.2d at 267. The case stands for the
uncontroversial proposition that a directed verdict is
appropriate where there is no evidence that defendants committed
acts punishable under the law. Similarly, in State v. Gist,
116 S.E.2d 856 (S.C. 1960), the South Carolina Supreme Court set
aside a minor’s guilty plea for violating the Statute when he
used “abusive, obscene, vulgar, and profane language” over the
telephone, but not, as required under the Statute, in a public
place or within hearing distance of a school or church.
(Continued)
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Second, Johnson argues that because Sarratt did not appeal

his conviction to the South Carolina Supreme Court, it does not

have that court’s imprimatur and thus lacks authority. This

argument has no merit. Intermediate appellate opinions can

authoritatively construe state law, particularly where, as here,

they are binding statewide and have been so for a number of

years. Gooding, 405 U.S. at 525 n.3; Kolender, 461 U.S. at 357

n.4. 4

Third, Johnson argues that Sarratt lacks authority because

it upheld a conviction for what Johnson calls constitutionally

protected speech. Johnson misconstrues our inquiry. We rely on

Sarratt insofar as it provides the state’s interpretation of the

Statute. Sarratt construed the Statute to require fighting

words to sustain a conviction. We are not reviewing whether

Sarratt correctly applied that standard to the facts of its case

or whether the facts of this case would warrant a conviction.

Future courts would rightly look to Chaplinsky v. State of New

116 S.E.2d at 857. Like Hanapole, Gist does not hold that such
vulgar or abusive language would be sufficient for a conviction,
but only that where one necessary element of the crime is
missing, a conviction cannot stand. No First Amendment issues
were discussed in either case.
4
The Kolender Court did note that in the state appellate
case it relied on, the state supreme court had also “refused
review,” 461 U.S. at 355 n.4, but we do not think this one
factor determinative.

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Hampshire, 315 U.S. 568 (1942), and its progeny to determine

exactly what constitutes “fighting words,” not a solitary

appellate court application.

In sum, we conclude that Sarratt authoritatively construes

the Statute to require fighting words for a conviction, speech

that Johnson concedes is unprotected by the First Amendment.

Therefore, because the Statute covers only constitutionally

unprotected speech, it is not overbroad.

We turn next to Johnson’s argument that the Statute is

unconstitutionally vague under the Due Process Clause of the

Fourteenth Amendment. A state violates due process if it

deprives a person of “life, liberty, or property under a

criminal law so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement.” Johnson v. United States,

135 S. Ct. 2551, 2556 (2015). 5 Although courts sometimes

5 We note that, in its ruling, the district court relied on
the statement in Vill. of Hoffman Estates that, where no
constitutionally protected conduct is concerned, courts “should
uphold the [vagueness] challenge only if the enactment is
impermissibly vague in all of its applications.” 455 U.S.
at 495 (emphasis added). However, the Supreme Court recently
backed away from this pronouncement: “[O]ur holdings squarely
contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within
the provision’s grasp.” Johnson, 135 S. Ct. at 2561. That
clarification does not affect the outcome here.

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separately analyze whether a challenged law provides sufficient

notice to citizens and guidance to law enforcement, these

analyses often converge, as they do here. See, e.g., Hill v.

Colorado, 530 U.S. 703, 732–33 (2000) (concluding that both

standards were met for the same reason).

Johnson argues that the phrases “profane speech” and

“hearing distance” are impermissibly vague. In Chaplinsky, the

Supreme Court concluded that the state court’s construction of a

statute to cover only unprotected fighting words “necessarily

dispose[d] of appellant's contention that the statute [was] so

vague and indefinite as to render a conviction thereunder a

violation of due process.” 315 U.S. at 574. Therefore, our

conclusion that Sarratt authoritatively narrowed the Statute to

fighting words disposes of Johnson’s argument that the phrase

“profane speech” is vague. Johnson’s arguments about the phrase

“hearing distance” are similarly unpersuasive. She offers two

ways that the legislature could clarify the Statute, but neither

clarification is constitutionally required.

Johnson first argues that the legislature could clarify the

law by stating an exact distance, such as “within 50 feet of a

schoolhouse or church.” But the Supreme Court has never

required this kind of precision. In Cox v. State of Louisiana,

379 U.S. 559 (1965), the Supreme Court reviewed a statute that

prohibited picketing or parading “near” a courthouse. The Court

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determined that the “lack of specificity in a word such as

‘near’” did not render the statute unconstitutionally vague.

Id. at 568. Instead, the statute “fore[saw] a degree of on-the-

spot administrative interpretation by officials charged with

responsibility for administering and enforcing it.” Id.; 6 see

also Grayned v. City of Rockford, 408 U.S. 104, 111 (1972)

(concluding that the term “adjacent” in a criminal ordinance set

“a sufficiently fixed place” in which certain actions were

prohibited). Furthermore, the South Carolina legislature may

have desired a flexible standard to account for the fact that

speech can vary in volume; thus, the “hearing distance” from

one’s speech varies with the loudness of one’s words.

Johnson also argues that the law could be more precise if

it included a scienter requirement, such that a person could

only be punished if she knew a school or church was within

hearing distance. Although a scienter requirement can be a

relevant factor in judging the contours of a law, Hill, 530 U.S.

6
It is true, as Johnson points out, that the officers in
Cox informed the protesters where they could assemble, which the
protesters relied on as an official interpretation of the term
“near.” But the challenger in Cox was raising “constitutional
objections arising from [his] conviction on the particular facts
of [his] case,” 379 U.S. at 568, not the facial vagueness
challenge that Johnson asserts. As to any facial vagueness, Cox
stated that “this lack of specificity [in the word “near”] may
not render the statute unconstitutionally vague, at least as
applied to a demonstration within the sight and hearing of those
in the courthouse.” Id.

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at 732, Johnson cites no authority for the proposition that such

a requirement is necessary. In the Statute, the phrase “hearing

distance” necessarily encompasses only a relatively short

distance from the speech, which will often be readily apparent

to the speaker. Because the phrase “hearing distance” limits

where conduct must occur to be punishable, some flexibility in

the terms used does not offend due process.

In short, the South Carolina Statute here does not violate

the Due Process Clause of the Fourteenth Amendment. It does not

“fail[] to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits.” Hill,

530 U.S. at 732. On the contrary, it forbids a narrow category

of unprotected speech--fighting words--and only when that speech

occurs within hearing distance of a school or church.

Similarly, it is not “so standardless that it invites arbitrary

enforcement.” Johnson, 135 S. Ct. at 2556. Police officers

cannot arbitrarily decide what conduct to punish under the

Statute; both the fighting-words requirement and the proximity

limitation circumscribe their discretion. “‘As always,

enforcement requires the exercise of some degree of police

judgment,’ and the degree of judgment involved here is

acceptable.” Hill, 530 U.S. at 733 (quoting Grayned, 408 U.S.

at 114).

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IV.

We conclude that the Statute is not unconstitutionally

overbroad or vague. South Carolina’s appellate court has

confined the Statute to fighting words, obviating any

overbreadth concerns, and the Statute defines the conduct it

prohibits with sufficient definiteness. Accordingly, Johnson’s

facial challenges fail.

The order of the district court is therefore

AFFIRMED.