                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-2133


KRYSTAL JOHNSON,

                Plaintiff – Appellant,

           v.

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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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.



                                             I.

      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-



                                             3
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).



                                       4
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

                                         5
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.

                                           A.

      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

                                             6
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.



                                              7
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

                                         8
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)
                                               9
         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.



                                           10
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.

                                           B.

     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.


                                           11
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

                                              12
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.



                                                13
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).



                                       14
                                     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.




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