                           PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 16-6026


JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE
#5,

              Plaintiffs – Appellees,

         v.

ROY A. COOPER, III, Attorney General of the State of North
Carolina; FRANK PARRISH, District Attorney, District 01;
SETH EDWARDS, District Attorney, District 02; KIMBERLY ROBB,
District Attorney, District 03A; SCOTT THOMAS, District
Attorney, District 03B; ERNIE LEE, District Attorney,
District 04; BEN DAVID, District Attorney, District 05;
MELISSA PELFREY, District Attorney, District 06A; VALERIE
ASBELL, District Attorney, District 06B; ROBERT EVANS,
District Attorney, District 07; BRANSON VICKORY, District
Attorney, District 08; SAM CURRIN, District Attorney,
District 09; WALLACE BRADSHER, District Attorney, District
09A; COLON WILLOUGHBY, JR., District Attorney, District 10;
VERNON STEWART, District Attorney, District 11A; SUSAN
DOYLE, District Attorney, District 11B; BILLY WEST, District
Attorney, District 12; JON DAVID, District Attorney,
District 13; LEON STANBACK, District Attorney, District 14;
PAT NADOLSKI, District Attorney, District 15A; JAMES
WOODALL, JR., District Attorney, District 15B; KRISTY
NEWTON, District Attorney, District 16A; JOHNSON BRITT, III,
District Attorney, District 16B; PHIL BERGER, JR., District
Attorney, District 17A; RICKY BOWMAN, District Attorney,
District 17B; DOUG HENDERSON, District Attorney, District
18; ROXANN VANEEKHOVEN, District Attorney, District 19A;
GARLAND YATES, District Attorney, District 19B; BRANDY COOK,
District Attorney, District 19C; MAUREEN KRUEGER, District
Attorney, District 19D; REECE SAUNDERS, District Attorney,
District 20A; TREY ROBISON, District Attorney, District 20B;
JIM O'NEILL, District Attorney, District 21; SARAH KIRKMAN,
District Attorney, District 22A; GARRY FRANK, District
Attorney, District 22B; TOM HORNER, District Attorney,
District 23; JERRY WILSON, District Attorney, District 24;
JAY GAITHER, District Attorney, District 25; ANDREW MURRAY,
District Attorney, District 26; LOCKE BELL, District
Attorney, District 27A; RICK SHAFFER, District Attorney,
District 27B; RONALD MOORE, District Attorney, District 28;
BRAD GREENWAY, District Attorney, District 29A; GREGORY A.
NEWMAN, District Attorney, District 29B; MICHAEL BONFOEY,
District Attorney, District 30,

                Defendants – Appellants,

          and

PAT MCCRORY, Governor of the State of North Carolina,

                Defendant.



                             No. 16-1596


JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE
#5,

                Plaintiffs – Appellees,

          v.

ROY A. COOPER, III, Attorney General of the State of North
Carolina; FRANK PARRISH, District Attorney, District 01;
SETH EDWARDS, District Attorney, District 02; KIMBERLY ROBB,
District Attorney, District 03A; SCOTT THOMAS, District
Attorney, District 03B; ERNIE LEE, District Attorney,
District 04; BEN DAVID, District Attorney, District 05;
MELISSA PELFREY, District Attorney, District 06A; VALERIE
ASBELL, District Attorney, District 06B; ROBERT EVANS,
District Attorney, District 07; BRANSON VICKORY, District
Attorney, District 08; SAM CURRIN, District Attorney,
District 09; WALLACE BRADSHER, District Attorney, District
09A; COLON WILLOUGHBY, JR., District Attorney, District 10;
VERNON STEWART, District Attorney, District 11A; SUSAN
DOYLE, District Attorney, District 11B; BILLY WEST, District
Attorney, District 12; JON DAVID, District Attorney,
District 13; LEON STANBACK, District Attorney, District 14;
PAT NADOLSKI, District Attorney, District 15A; JAMES
WOODALL, JR., District Attorney, District 15B; KRISTY
NEWTON, District Attorney, District 16A; JOHNSON BRITT, III,

                                  2
District Attorney, District 16B; PHIL BERGER, JR., District
Attorney, District 17A; RICKY BOWMAN, District Attorney,
District 17B; DOUG HENDERSON, District Attorney, District
18; ROXANN VANEEKHOVEN, District Attorney, District 19A;
GARLAND YATES, District Attorney, District 19B; BRANDY COOK,
District Attorney, District 19C; MAUREEN KRUEGER, District
Attorney, District 19D; REECE SAUNDERS, District Attorney,
District 20A; TREY ROBISON, District Attorney, District 20B;
JIM O'NEILL, District Attorney, District 21; SARAH KIRKMAN,
District Attorney, District 22A; GARRY FRANK, District
Attorney, District 22B; TOM HORNER, District Attorney,
District 23; JERRY WILSON, District Attorney, District 24;
JAY GAITHER, District Attorney, District 25; ANDREW MURRAY,
District Attorney, District 26; LOCKE BELL, District
Attorney, District 27A; RICK SHAFFER, District Attorney,
District 27B; RONALD MOORE, District Attorney, District 28;
BRAD GREENWAY, District Attorney, District 29A; GREGORY A.
NEWMAN, District Attorney, District 29B; MICHAEL BONFOEY,
District Attorney, District 30,

                 Defendants – Appellants,

           and

PAT MCCRORY, Governor of the State of North Carolina,

                 Defendant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-00711-JAB-JLW)


Argued:   September 21, 2016           Decided:   November 30, 2016


Before MOTZ, TRAXLER, and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Motz and Judge Traxler joined.


ARGUED: Matthew L. Boyatt, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants.   Paul Moore Dubbeling,

                                  3
P.M. DUBBELING PLLC, Chapel Hill, North Carolina, for Appellees.
ON BRIEF: Roy Cooper, North Carolina Attorney General, Hal F.
Askins, Special Deputy Attorney General, William P. Hart, Jr.,
Assistant   Attorney  General,   NORTH  CAROLINA  DEPARTMENT  OF
JUSTICE, Raleigh, North Carolina, for Appellants.




                               4
AGEE, Circuit Judge:

      The State of North Carolina requires persons convicted of

certain reportable sex offenses to register as “sex offenders.”

See   N.C.   Gen.    Stat.    §   14-208.6(4);     id.    §   14-208.7(a).       For

persons convicted of a subset of those reportable sex offenses,

North     Carolina   restricts     their      movement   relative      to    certain

locations where minors may be present.                See id. § 14-208.18(a)

(2015). 1

      John    Does    #1     through     #5    (collectively,        the     “Does”)

challenged    these    statutory       restrictions      as   either   overbroad,

under the First Amendment to the United States Constitution, or

unconstitutionally vague, under the Fourteenth Amendment.                        The

district court agreed with the Does as to two subsections of the

statute     and   permanently     enjoined      enforcement     of   section     14-

208.18(a)(2) and section 14-208.18(a)(3).                 For the reasons set

out below, we affirm the judgment of the district court.



                                         I.

      We begin with an overview of North Carolina’s sex offender

registration laws.         Persons with a “reportable conviction” of a


      1Section 14-208.18 was amended effective September                    1, 2016.
This case involves the 2015 version of that statute,                         and all
references to section 14-208.18 herein are to the 2015                      version.
The provisions of the amended statute are not at issue                       in this
case.


                                         5
sex offense, and who live in North Carolina, must register “with

the sheriff of the county where the person resides.”                         See N.C.

Gen. Stat. § 14-208.7(a).           During the registration period, which

generally lasts for “at least 30 years following the date of

initial       county     registration,”        id.,     the   movements       of     all

registered        sex       offenders         are     restricted       in     certain

circumstances.          For example, a registered sex offender may not

“knowingly reside within 1,000 feet of the property on which any

public or nonpublic school or child care center is located.”

Id. § 14-208.16(a).

       Some    registered     sex   offenders        are   subject   to     additional

restrictions under section 14-208.18(a).                   That statute provides

that   it     shall    be   unlawful    for    any    registered     offender      whose

registration follows a conviction for a violent sex offense 2 or


       2
       A “violent sex offense,” as applicable here, is “[a]ny
offense in Article 7B of [N.C. Gen. Stat.] Chapter [14] or any
federal offense or offense committed in another state, which if
committed in this State, is substantially similar to an offense
in Article 7B of this Chapter.”        N.C. Gen. Stat. § 14-
208.18(c)(1).    Article 7B of N.C. Gen. Stat. Chapter 14,
entitled “Rape and other Sex Offenses,” includes the offenses
of: first-degree forcible rape, second-degree forcible rape,
statutory rape of a child by an adult, first-degree statutory
rape, statutory rape of a person who is fifteen years of age or
younger, first-degree forcible sexual offense, second-degree
forcible sexual offense, statutory sexual offense with a child
by an adult, first-degree statutory sexual offense, statutory
sexual offense with a person who is fifteen years of age or
younger, sexual activity by a substitute parent or custodian,
sexual activity with a student, and sexual battery. See id. §§
14-27.21 through 14-27.33.


                                          6
any offense where the victim was younger than sixteen at the

time of the offense (“restricted sex offenders”) to “knowingly

be” at any of the following locations:

     (1)   On the premises of any place intended primarily
           for the use, care, or supervision of minors,
           including,   but    not   limited   to, schools,
           children’s    museums,    child   care  centers,
           nurseries, and playgrounds.

     (2)   Within   300  feet   of   any  location    intended
           primarily for the use, care, or supervision of
           minors when the place is located on premises that
           are not intended primarily for the use, care, or
           supervision of minors, including, but not limited
           to, places described in subdivision (1) . . .
           that are located in malls, shopping centers, or
           other property open to the general public.

     (3)   At any place where minors gather for regularly
           scheduled educational, recreational, or social
           programs.

Id. § 14-208.18(a).

     Those limitations on restricted sex offenders are subject

to certain exceptions.        For example, a restricted sex offender

who is also the “parent or guardian of a student enrolled in a

school may be present on school property” to attend a parent-

teacher conference, at the request of the school’s principal, or

“for any other reason relating to the welfare or transportation

of the child.”    Id. § 14-208.18(d).

     Absent one of the statutory exceptions, a restricted sex

offender who is “knowingly” at or on a restricted premises is

guilty of a Class H felony under North Carolina law.               Id. § 14-

208.18(h).    A   Class   H   felony       conviction   carries   with   it   a
                                       7
presumptive term of imprisonment of up to twenty months.                                       See

id. § 15A-1340.17.



                                            II.

                                              A.

     The Does are restricted sex offenders.                          In 1995, John Doe

#1 pleaded guilty to receiving material involving the sexual

exploitation of a minor, a violation of 18 U.S.C. § 2252(a)(2).

As a result, he served five years in federal prison, but, as of

2003,   is    no    longer    under     any       type   of    probation,           parole,    or

supervised release.           After his release, John Doe #1 attended a

church, but eventually was arrested because the church had a

child care center within 300 feet of the main congregation hall.

The local district attorney initially charged John Doe #1 with a

violation of section 14-208.18(a), but the charge was dropped.

Afterward, John Doe #1 was allowed to continue attending church

subject      to    a    number    of    restrictions           set       by       the    district

attorney.           Those     restrictions          included         a    prohibition          on

“assisting” with worship services and engaging in any church

activities outside of the main worship service.                           J.A. 137.

     In 2011, John Doe #2 was convicted of misdemeanor sexual

battery,     a     “violent      sex   offense,”         and   given          a    probationary

sentence.          As   a   result     of   his    conviction,           John      Doe    #2   was

advised by the local sheriff against attending his minor son’s

                                              8
educational and recreational activities “just to be on the safe

side.”       J.A.    69.      John       Doe      #2     has       received    conflicting

information from the local sheriff and his probation officer as

to whether he can attend his son’s sporting events remotely, via

technology    such    as    “Skype.”           In      like    fashion,       he   was   also

advised by his probation officer against visiting a wide variety

of   other   places,       including     a       fast    food       restaurant     with   an

attached play area, the North Carolina State Fairgrounds, and

adult    softball    league    games      (given        the     field’s       proximity   to

playground equipment).

      In 2002, John Doe #3 was convicted of committing indecent

liberties with a minor, a violation of N.C. Gen. Stat. § 14-

202.1, and he served four years in prison.                           John Doe #3 is now

employed and his current job responsibilities require him to

purchase office supplies.              However, the local sheriff advised

John Doe #3 he could be arrested for shopping at an office

supply store that is within 300 feet of a fast food restaurant

with an attached children’s play area.                        Further, John Doe #3 is

unsure whether he can drive within 300 feet of some locations

while on his way to work or visit the North Carolina State

Legislative Building, the meeting place of the North Carolina

General    Assembly,       given   its    proximity           to    the   North    Carolina

Museum of Natural Sciences, which may have visiting children.



                                             9
     John Doe #4 was convicted in 2007 of attempted solicitation

of a minor, a violation of N.C. Gen. Stat. § 14-202.3.                                  He

received    a     suspended        sentence     of    thirty     months,     spent      ten

weekends    in        intermittent      confinement,       and    completed        thirty

months of probation.            He currently wishes to attend church, but

is concerned doing so might violate section 14-208.18(a) because

the church has classes for children.                   In addition, he claims he

cannot attend a town council meeting, since the town hall is in

close proximity to the public library, which has a dedicated

children’s section.

     John       Doe    #5    was    convicted     in    2009     of    two   counts     of

misdemeanor sexual battery, for which he received two suspended

seventy-five      day       sentences    and    completed      eighteen      months      of

supervised probation.              Following his conviction, John Doe #5 was

awarded joint custody of his two minor children.                       However, he is

unable     to      participate          significantly       in        his    children’s

educational or recreational activities due to the restrictions

imposed by section 14-208.18(a).                In addition, like John Does #1

and #4, John Doe #5 wishes to attend church, but is concerned

that his presence may violate section 14-208.18(a) because the

church   has     programs      for    children.        Finally,       John   Doe   #5    is

concerned he may violate the statute while working, because his

employer,   a     construction        company,       sometimes    performs     projects

inside areas that may be covered by section 14-208.18(a).

                                           10
                                                    B.

     The    Does      filed       this     action          against        Pat    McCrory,   North

Carolina’s       Governor;         Roy     Cooper,           North       Carolina’s       Attorney

General; and each of North Carolina’s elected district attorneys

(collectively, the “State”).                    They challenged each subsection of

section 14-208.18(a) as overbroad, in violation of the First

Amendment        to         the      United               States         Constitution,          and

unconstitutionally           vague,            in     violation          of     the     Fourteenth

Amendment’s Due Process Clause.                          They requested declaratory and

injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.

     The district court granted the State’s Rule 12(b)(6) motion

and dismissed         the    Does’        overbreadth            claim     as   to    section   14-

208.18(a)(1).           Later,           the        district       court        granted   summary

judgment    to    the       State    on        the       Does’     section       14-208.18(a)(1)

vagueness claim.            The Does do not challenge these rulings on

appeal.

     The     parties        filed        cross           motions     for      summary     judgment

regarding the alleged vagueness and overbreadth of subsections

(a)(2) and (a)(3).                The district court held subsection (a)(2)

was not unconstitutionally vague.                           However, the district court

found    strong    indicia          of    vagueness          as     to     subsection     (a)(3),

noting    language,         such     as    “places          where        minors      gather,”   was

unbounded in scope.               And, unlike the other subsections of the

statute, subsection (a)(3) was not informed by any specific list

                                                    11
of   examples.       Further,    the     district     court    pointed    out   that

subsection        (a)(3)’s      reference       to      “regularly       scheduled”

activities was too vague for an ordinary person to determine its

application.       Accordingly, the district court ruled subsection

(a)(3) was unconstitutionally vague as violative of due process

and permanently enjoined its enforcement.                The State immediately

appealed the district court’s permanent injunction of subsection

(a)(3).       We have jurisdiction of that appeal pursuant to 28

U.S.C. § 1292(a)(1).

      The     district   court   denied       the    Does’   motion   for   summary

judgment on the separate, remaining issue of whether subsection

(a)(2) was overbroad and granted the State’s cross motion in

part.     As the district court set out in its opinion, subsection

(a)(2)      was    not    overbroad       to    the     extent    it     generally

“prohibit[ed] them from going to a variety of places, including

libraries, museums, parks, recreation centers, theaters, state

or   county    fairs,    the   General    Assembly[,]        religious    services,

movies, and certain private homes.”                 J.A. 169. 3   Stated another

way, the district court held that, even though subsection (a)(2)

incidentally restricted the Does’ access to certain locations

where activities protected by the First Amendment would occur,


      3We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.


                                         12
it    was   not   overbroad       with    respect       to   the      particular      place

restrictions.

       However, the district court also determined that a genuine

issue of material fact existed as to whether subsection (a)(2)

was    overbroad    “in    that    it    could      burden     less      First    Amendment

activity by taking into account the individual dangerousness of

certain     restricted     sex    offenders.”           J.A.      173.      The    district

court noted “an inquiry into dangerousness” was proper “in that

if subsection (a)(2) burdens the First Amendment rights of sex

offenders     who   pose     little      or    no     risk   to    minors,”       then   the

statute could be overbroad.                   J.A. 174.        Accordingly, because

“the    parties      [did]      not     thoroughly       address[]        th[e]    crucial

issue” of “whether applying [subsection (a)(2)] to restricted

sex    offenders     who     committed         offenses      not      involving     minors

furthers [North Carolina’s] interest in protecting minors,” the

district court denied the motions for summary judgment and set

that issue for trial.           J.A. 176-77.

       Before trial, the parties filed renewed cross motions for

summary      judgment      on      the        issue     of     subsection         (a)(2)’s

overbreadth.        As recited in the district court’s opinion, at a

status conference on the motions:

       The   Court  expressed    to Defendants that   their
       evidentiary showing up to that point was likely
       inadequate to carry their burden of showing that
       subsection   (a)(2)    furthers [North   Carolina’s]
       interest in protecting minors from sexual crimes

                                              13
     without burdening substantially more speech than
     necessary, particularly as their showing related to
     adult-victim offenders.      Hence, the Court asked
     Defendants if there was additional evidence they
     wished to obtain and provide to the Court in support
     of   their  Renewed   Motion   for  Summary  Judgment.
     Defendants stated that they would rely upon the
     evidence already provided to the Court and would not
     provide additional evidence.   The parties agreed that
     a trial was unnecessary, that a trial would merely
     duplicate the evidence already presented, and that the
     Court should resolve the remaining issue as a matter
     of law based upon the evidence that had been
     presented.

Suppl. J.A. 155.

     The district court then granted summary judgment to the

Does, holding, on the record before it, subsection (a)(2) was

facially overbroad in violation of the First Amendment.                     In the

district    court’s     view,    subsection    (a)(2),     although        facially

neutral,     significantly       impaired     restricted       sex       offenders’

exercise    of   core   First    Amendment    rights   without       taking   into

consideration the dangerousness of the particular offender.                      In

other words, subsection (a)(2) was overbroad because it affected

the ability of all restricted sex offenders to engage in core

First     Amendment     activities,   such     as   attending        a    religious

service    or    congregating    in   some    public   fora,    regardless      of

whether a particular restricted sex offender had ever abused

minors or was likely to do so.

        The district court agreed the State had a legitimate and

substantial      interest   in   protecting    minors,   but    concluded       the


                                       14
State failed to meet its burden of proof to show subsection

(a)(2) was narrowly tailored to further that interest.                       As a

result, the district court permanently enjoined enforcement of

subsection (a)(2) and entered judgment in the Does’ favor.

     The     State    timely    appealed      that    judgment.         We      have

jurisdiction over that appeal under 28 U.S.C. § 1291. 4



                                       III.

     We review de novo the district court’s rulings concerning

the constitutionality of a state statute.                 See Miller v. Brown,

503 F.3d 360, 364 (4th Cir. 2007).

                                        A.

     The State first challenges the district court’s ruling that

subsection     (a)(3)      is   unconstitutionally         vague     and,    thus,

violates the Due Process Clause of the Fourteenth Amendment.                      In

relevant    part,    the   Fourteenth    Amendment        provides    that   “[n]o

State shall . . . deprive        any     person      of    life,     liberty,     or

property, without due process of law[.]”                   U.S. Const. amend.

XIV, § 1.      A state law violates due process if it “fails to

provide a person of ordinary intelligence fair notice of what is

     4 The State’s appeal of the district court’s final judgment
came after briefing on its earlier interlocutory appeal
regarding subsection (a)(3) was completed.      The State’s two
appeals were consolidated for purposes of this proceeding, with
the issue of subsection (a)(2)’s overbreadth addressed through
supplemental briefing.


                                        15
prohibited,          or     is     so    standardless        that     it     authorizes       or

encourages       seriously         discriminatory          enforcement.”            Martin    v.

Lloyd, 700 F.3d 132, 135 (4th Cir. 2012).                           “The prohibition of

vagueness in criminal statutes is a well-recognized requirement,

consonant       alike       with       ordinary    notions    of    fair     play     and    the

settled rules of law[.]”                  Johnson v. United States, 576 U.S. __,

135 S. Ct. 2551, 2556-57 (2015).

     As     noted           earlier,          subsection     (a)(3)        states     that     a

restricted       sex      offender       may     not   “knowingly     be . . . [a]t          any

place where minors gather for regularly scheduled educational,

recreational,          or    social       programs.”         N.C.     Gen.    Stat.    §     14-

208.18(a)(3).               When       read    alongside     subsections        (a)(1)       and

(a)(2), the State contends subsection (a)(3) has a clear “core”

meaning.        Although the State concedes the three subsections of

section 14-208.18(a) “constitute separate offenses,” it posits

“they     are    nevertheless             interrelated       and    must      therefore       be

construed       in    pari       materia.”         Appellants’      Opening     Br.    10-11.

When read that way, the State concludes, “[n]o ordinary person

would read [section] 14-208.18(a) in its entirety and be unclear

as to” the meaning of subsection (a)(3).                            Appellants’ Opening

Br. 11.     The district court disagreed, and so do we.

     When       applying         the    constitutional       vagueness       doctrine,       the

Supreme Court distinguishes between statutes that “require[] a

person to conform his conduct to an imprecise but comprehensible

                                                  16
normative      standard”       and        those          that    specify      “no   standard        of

conduct.”        Coates       v.    City       of    Cincinnati,         402     U.S.     611,     614

(1971).     Statutes falling into the former category have, as the

State terms it, a constitutional “core” in the sense that they

“apply    without    question             to    certain          activities,”       even        though

their     application         in     marginal             situations       may      be     a     close

question.        Parker        v.        Levy,       417        U.S.   733,    755-56          (1974).

Conversely, those statutes that fall into the latter category

are unconstitutionally vague.                    The distinction between these two

types of statutes, in some instances, may be somewhat difficult

to decipher.        Indeed, an unconstitutionally vague statute may

still     have   some     clearly              constitutional           applications.              See

Johnson, 135 S. Ct. at 2560-61.

      But where a statute specifies no standard, the fact that it

has one or more clearly constitutional applications cannot save

it.     See id.     Supreme Court precedent “squarely contradict[s]

the   theory     that     a    vague       provision             is    constitutional           merely

because    there    is    some       conduct         that        clearly   falls         within    the

provision’s grasp.”                Id.     That is the case here.                        Subsection

(a)(3) is unconstitutionally vague, even though some conduct may

“fall[]    within . . . [its]                  grasp,”          id.,   because      it    fails     to

“define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in



                                                    17
a manner that does not encourage arbitrary and discriminatory

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

       Two   principal        problems    are    evident     in    subsection    (a)(3)

which compel the conclusion it is unconstitutionally vague.                          In

particular,       a       reasonable    person,     whether       a   restricted     sex

offender     or       a    law   enforcement       officer,       cannot    reasonably

determine     (1)         whether   a    program    for    minors      is   “regularly

scheduled” or (2) what places qualify as those “where minors

gather.”

       The district court succinctly explained these deficiencies

with respect to the “regularly scheduled” provision:

            The   first  problem   stems  from  the   language
       “regularly scheduled.”      The term “regular” means
       happening at fixed intervals[, periodic].    Even if a
       restricted sex offender or law enforcement officer
       knew    precisely    how    often   and    where    the
       “scheduled programs” took place, the statute provides
       no principled standard at all for determining whether
       such programs are “regularly scheduled.”

            Notably, subsection (a)(3) provides no examples
       to guide restricted sex offenders or law enforcement
       as to how frequently the programs would need to occur
       in order to be “regularly scheduled.”     In contrast,
       subsection (a)(1) provides examples of (a)(1) “places”
       and subsection (a)(2) provides examples of (a)(2)
       “premises” upon which a “location” or “place” might
       be.   This case is distinguishable from other cases
       holding   restrictions    that   included   the   word
       “regularly” or variants of “frequently” to be not
       vague because those restrictions included examples to
       clarify which locations were restricted.

J.A.    157-59.             Moreover,     although     not        necessary     to   our

conclusion, the State’s own evidence confirms the difficulty in

                                            18
determining       whether     a      program    for      minors     is      “regularly

scheduled.”         For   example,         District     Attorney     Todd     Williams

admitted subsection (a)(3) “gives no clear guidance” regarding

the frequency with which an activity must be conducted to be

“regularly scheduled.”         J.A. 159.

     Likewise,         subsection         (a)(3)’s     “where      minors     gather”

language is without defining standards.                    The district court’s

opinion accurately expresses the constitutional issue:

     For example, subsection (a)(3) does not explain how
     many minors must gather at the place.        Subsection
     (a)(3) also does not explain whether a place where
     mixed groups of minors and adults gather, such as a
     community college that has some high school students
     or a church with a congregation of adults and minors,
     would be considered a restricted zone under subsection
     (a)(3).   As was the case with the term “regularly
     scheduled,” subsection (a)(3) is distinguishable from
     other instances where similar formulations have been
     held to be not vague because those cases involved
     general language that was accompanied by examples
     rather than general language standing alone.

J.A. 159-60.

     The    State      attempts      to     overcome     these     deficiencies     by

appealing to the in pari materia canon of construction.                             In

essence, the State contends subsection (a)(3) should be saved by

reading    into   it    the   list    of    places     specifically      included   in

subsection (a)(1) and incorporated by reference in subsection

(a)(2).    That argument lacks merit.

     We have “interpreted the principle [of in pari materia] to

mean that adjacent statutory subsections that refer to the same

                                           19
subject matter should be read harmoniously.”                            United States v.

Broncheau, 645 F.3d 676, 685 (4th Cir. 2011).                             But the in pari

materia principle does not apply here by virtue of the structure

of subsection (a)(3) as written by the North Carolina General

Assembly.            Directly         to     that          point,   subsection         (a)(3)

conspicuously         omits     any       list    of       examples,    in     contrast      to

subsection (a)(1).             In addition, subsection (a)(3) contains no

language suggesting that such a list should be read into it, in

contrast       to     subsection           (a)(2).            We    must      presume        the

legislature’s omissions to be intentional.                          See, e.g., Jones v.

Comm’r, 642 F.3d 459, 463 (4th Cir. 2011) (“[W]hen a statute

includes      particular       language      in       one    section    but    omits    it   in

another,      a      court     can     assume . . . that            the       omission       was

deliberate.”); N.C. Dep’t of Revenue v. Hudson, 675 S.E.2d 709,

711   (N.C.    Ct.     App.    2009)       (“When      a    legislative       body   includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

the legislative body acts intentionally and purposely in the

disparate inclusion or exclusion.”).                        We cannot, therefore, read

by judicial construction into subsection (a)(3) that which the

legislature chose to omit.

      Even     if     we     were    to    read       subsection       (a)(1)’s      list    of

examples      into    subsection          (a)(3),      other    problems      would    arise.

“[A] statute should be construed so that effect is given to all

                                                 20
its    provisions,       so    that    no     part       will    be     inoperative     or

superfluous, void or insignificant[.]”                     Corley v. United States,

556 U.S. 303, 314 (2009); accord State v. Coffey, 444 S.E.2d

431,   434    (N.C.     1994).        Reading      subsection      (a)(1)’s      list    of

examples into subsection (a)(3) would effectively make the two

provisions identical, thereby rendering one of those subsections

“superfluous” or “insignificant.”                  Corley, 556 U.S. at 314.             For

instance,      the      examples      listed        in     subsection      (a)(1)       and

incorporated       by   reference      into       subsection     (a)(2)    --    schools,

children’s museums, childcare centers, and playgrounds -- are

places “intended primarily for the use, care, or supervision of

minors.”       N.C. Gen. Stat. § 14-208.18(a)(1) & (a)(2).                            But,

those same places also are “place[s] where minors gather for

regularly      scheduled         educational,            recreational,      or      social

programs.”         Id. § 14-208.18(a)(3).                Thus, to read subsection

(a)(1)’s list into subsection (a)(3) would be to effectively

swallow subsections (a)(1) and (a)(2), leaving them “only to

define       the     limits      of    the        proscribed       ‘place[s]’”        then

incorporated into subsection (a)(3).                       Appellees’ Response Br.

14.      Subsection (a)(3) cannot be saved by reading subsection

(a)(1)    into     it   and,     thereby,         diminishing      or    subsuming      the

importance of other clear legislative judgments.

       In sum, neither an ordinary citizen nor a law enforcement

officer       could      reasonably          determine          what     activity       was

                                             21
criminalized        by    subsection       (a)(3).      As    a     consequence,             that

subsection does not meet the standards of due process because it

is unconstitutionally vague.                   Accordingly, the district court

did    not   err     in    granting       summary    judgment       as     to    subsection

(a)(3).

                                               B.

       The     State      separately       challenges     the       district           court’s

holding that subsection (a)(2) is unconstitutionally overbroad

in    violation      of    the   First     Amendment.         As    the     proponent         of

subsection      (a)(2),      the       State   was   required       to    prove       that     it

“promotes      a     substantial         government    interest          that        would     be

achieved less effectively absent the regulation” and does not

“burden substantially more speech than is necessary to further

the government’s legitimate interests.”                       Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989).                     As we explain below, the

State failed to meet its burden of proof.

                                               1.

       Under       the    overbreadth      doctrine,     if     a    law    “punishes          a

substantial amount of protected free speech, judged in relation

to the statute’s plainly legitimate sweep,” then it is invalid

“until       and     unless        a     limiting     construction              or     partial

invalidation so narrows it as to remove the seeming threat or

deterrence to constitutionally protected expression.”                                 Virginia

v. Hicks, 539 U.S. 113, 118-19 (2003).                   Any overbreadth must be

                                               22
both “real” and “substantial” in order to be constitutionally

deficient.          Hill     v.    Colorado,        530    U.S.    703,    732     (2000).

Although “substantial” overbreadth is not “readily reduced” to a

mathematical formula, “there must be a realistic danger that the

statute   itself      will    significantly          compromise     recognized      First

Amendment protections of parties not before the Court for it to

be facially challenged on overbreadth grounds.”                       Members of the

City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,

800-01 (1984).

       Subsection (a)(2) burdens the First Amendment rights of all

restricted sex offenders “by inhibiting the[ir] ability . . . to

go to a wide variety of places associated with First Amendment

activity.”         Suppl. J.A. 158.           For example, subsection (a)(2)

potentially impedes the ability of restricted sex offenders to

access public streets, parks, and other public facilities.                             See

Hague    v.   Comm.    for        Indus.    Org.,    307    U.S.    496,    515     (1939)

(“Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and,

time    out   of   mind,     have    been    used     for   purposes       of    assembly,

communicating thoughts between citizens, and discussing public

questions.”).         The issue presented to the district court, and

now on appeal, is whether subsection (a)(2) is overbroad because

it places substantial limitations of movement on restricted sex

offenders without regard to the dangerousness of the individual

                                             23
offender.      Put another way, we must decide whether subsection

(a)(2) is overbroad because it applies to all restricted sex

offenders, not just those who pose a danger to minors or are

likely to pose such a danger.

                                        2.

       In    analyzing       overbreadth,     we    initially     identify      the

appropriate level of scrutiny to apply to the statute.                    Because

subsection      (a)(2)        implicates      protected     First     Amendment

activities,     our    first     task   is    to   determine    whether   it    is

“content neutral.”            “If the regulation was adopted to burden

disfavored viewpoints or modes of expression, a court applies

strict scrutiny.”            Giovani Carandola, Ltd. v. Bason, 303 F.3d

507,   512   (4th     Cir.    2002).    Conversely,    if   the   statute      “was

adopted for a purpose unrelated to the suppression of expression

-- e.g., to regulate conduct, or the time, place, and manner in

which expression may take place -- a court must apply a less

demanding intermediate scrutiny.”             Id. at 512-13; see also Texas

v. Johnson, 491 U.S. 397, 406-07 (1989).

        The parties stipulate that subsection (a)(2) is content

neutral and we agree.            The statute does not burden disfavored

viewpoints or certain modes of expression.                  Rather, it merely

restricts the time, place, or manner in which restricted sex

offenders     may   engage     in   certain   activities    protected     by    the

First Amendment.       Thus, we apply intermediate scrutiny.

                                        24
     To pass intermediate scrutiny, a statute must “materially

advance[] an important or substantial [government] interest by

redressing    past   harms   or   preventing   future    ones.”      Giovani

Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Cir. 2006).             In

addition, it must have the right “fit.”                That is, it cannot

“burden substantially more speech than is necessary to further

the government’s legitimate interests.”             Ward, 491 U.S. at 799.

“[I]ntermediate scrutiny places the burden of establishing the

required fit squarely upon the government.”              United States v.

Chester, 628 F.3d 673, 683 (4th Cir. 2010).

                                     3.

     As noted previously, at a status conference held prior to

considering    the   parties’     renewed   cross    motions   for   summary

judgment, the district court put the State on notice that its

limited evidence was inadequate to meet its burden of proof.

Yet, the State explicitly declined to introduce any additional

evidence.     The only “evidence” proffered by the State consisted

of citations to a list of cases in which sex offenders had re-

offended after a prior conviction. 5


     5 The case law examples relied on by the State do not nudge
the needle in its favor.    For example, in People v. Loy, 254
P.3d 980 (Cal. 2011), the defendant first offended with a minor
victim, then re-offended with an adult victim. See id. at 988.
The facts of that case do not suggest that a restricted sex
offender, who first offends with an adult victim, is likely to
re-offend with a minor victim.   The same is true for People v.
(Continued)
                                     25
     In its order granting the Does’ renewed motion for summary

judgment, the district court addressed the State’s evidentiary

deficit:

     Defendants’ decision to not provide expert testimony
     or statistical reports to the Court was somewhat
     unexpected.      Defendants   stated  at   the   status
     conference that it would not be difficult for them to
     find an expert to support their case. Yet, Defendants
     chose not to seek out an expert even after repeated
     inquiries from the Court regarding whether they
     desired to do so and after the Court expressly stated
     that it believed that Defendants’ evidentiary offering
     was inadequate to carry their burden in this case.

Suppl. J.A. 168.

    The    State   tries   to   overcome   its   lack    of   data,   social

science or scientific research, legislative findings, or other

empirical evidence with a renewed appeal to anecdotal case law,

as well as to “logic and common sense.”                 Appellants’ Suppl.

Opening Br. 11.     But neither anecdote, common sense, nor logic,

in a vacuum, is sufficient to carry the State’s burden of proof.

See United States v. Carter, 669 F.3d 411, 418-19 (4th Cir.

2012).     Thus, while the State’s argument may be conceptually




Hollie, 103 Cal. Rptr. 3d 633, 637-39 (Cal. Ct. App. 2010).
Other cases cited by the State suggest, for example, that a
restricted sex offender may develop and retain an attraction for
a particular individual.    See State v. Smith, 687 S.E.2d 525,
527 (N.C. Ct. App. 2010). None of these cases suggest with any
degree of reliability that offenders with only adult victims are
more likely to reoffend with minors.



                                   26
plausible, it presented no evidence or data to substantiate it

before the district court. 6

      In   fact,     the       State’s       own     evidence     belies    its    appeal   to

“common sense” as an appropriate substitute for evidence.                                   In

its brief, the State cites three North Carolina cases, State v.

Smith, 687 S.E.2d 525 (N.C. Ct. App. 2010); State v. Tyson, 672

S.E.2d 700 (N.C. Ct. App. 2009); and State v. Smith, 568 S.E.2d

289   (N.C.    Ct.     App.         2002),     for    the   proposition      that    “sexual

deviants      choose      victims         based      upon   opportunity/vulnerability

rather     than    the     age       of   the      victim   or     level    of    ‘romantic’

attraction     akin       to    that      of    husband     and    wife.”         Appellants’

Suppl. Opening Br. 18-19.                    However, the State fails to explain

how three cases, representing three individuals -- out of more

than 20,000 registered North Carolina sex offenders -- provide a

sufficient        basis        to     justify        subsection      (a)(2)’s       sweeping




      6Nor is the State’s appeal to the policy underlying Federal
Rule of Evidence 413 persuasive. That rule provides in relevant
part “[i]n a criminal case in which a defendant is accused of a
sexual assault, the court may admit evidence that the defendant
committed any other sexual assault.” Fed. R. Evid. 413(a). The
State cites Rule 413 as “evidence” that “Congress has clearly
drawn the connection between past sexually assaultive conduct
and the likelihood of future sexually assaultive conduct
regardless of victim age.”    Appellants’ Suppl. Opening Br. 15.
However, the State confuses the rule’s suggestion that sex
offenders are likely to re-offend with the more pointed, and
very different, proposition that sex offenders with only adult
victim offenses are likely to re-offend with a minor victim.



                                                27
restrictions. 7       Although each of these cases involved a minor

victim, there was no evidence in any case that the defendant had

ever been convicted of a previous sex offense.

      Similarly, the State cannot rest its case on the conclusory

assertion that minors would be “more exposed to harm without

[this] prohibition than with it.”                     Appellants’ Suppl. Opening

Br.   10.        Without    empirical     data    or     other       similar   credible

evidence, it is not possible to tell whether subsection (a)(2) -

- and specifically its application to offenders with only adult

victims -- responds at all to the State’s legitimate interest in

protecting minors from sexual assault.

      Finally, although the State cites United States v. Staten,

666 F.3d 154 (4th Cir. 2011), to bolster its appeal to “common

sense,” that case is inapposite.                 In Staten, this Court upheld

18 U.S.C. § 922(g)(9) 8 against                a Second Amendment challenge,

reasoning        “common    sense   and        case     law    fully     support[ed]”

restricting persons convicted of misdemeanor crimes of domestic

violence from possessing firearms.                    Id. at 161.        However, our

appeal      to    “common    sense”     in       Staten       only     bolstered    the


      7 There currently are more than 21,000 sex offenders
registered in North Carolina.     See Offender Statistics, N.C.
Dep’t of Pub. Safety, http://sexoffender.ncsbi.gov/stats.aspx
(last visited Nov. 29, 2016)(saved as ECF opinion attachment).
     8 Section 922(g)(9) prohibits “any person . . . who has been

convicted in any court of a misdemeanor crime of domestic
violence” from possessing a firearm. 18 U.S.C. § 922(g)(9).


                                          28
government’s already strong case, which was fully supported by

empirical        proof      in    the    form      of     data    generated      from    relevant

social      science         research.              See     id.      at   164-65       (discussing

empirical research supplied by the government).

       While all parties agree North Carolina has a substantial

interest         in   protecting         minors          from    sexual        crimes,    it    was

incumbent         upon      the     State       to       prove      subsection        (a)(2)    was

appropriately tailored to further that interest.                                  Nevertheless,

for reasons not apparent from the record, the State failed to

produce evidence to carry that burden.                                 Thus, irrespective of

whether      subsection            (a)(2)          could        have     met     constitutional

standards in a different evidentiary setting, the State here

simply failed to meet its burden of proof.                               See, e.g., McCullen

v.   Coakley,         573    U.S.       __,   134        S.   Ct.      2518,    2539-40    (2014)

(“Respondents point us to no evidence that individuals regularly

gather      at    other      clinics,         or     at    other       times    in    Boston,    in

sufficiently large groups to obstruct access.”); Chester, 628

F.3d   at    683      (“[I]ntermediate               scrutiny       places      the    burden    of

establishing the required fit squarely upon the government.”).

       Accordingly, the district court did not err in granting the

Does’ motion for summary judgment as to subsection (a)(2).




                                                   29
                           IV.

    For the foregoing reasons, the judgment of the district

court is

                                                   AFFIRMED




                            30
