                                       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:

                                              3
       (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

                                                7
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.

                                              13
                                               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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