Ban on Words that “Humiliate,” “Insult,” or “Scare” Held Unconstitutionally Vague

From City of Greenville v. Bane, decided yesterday by the South Carolina Supreme Court:

Appellant was convicted of violating a City of Greenville ordinance (the ordinance), entitled “Molesting, disturbing, or following persons,” which provides [in relevant part that “i]t shall be unlawful for any person to: … (3) Molest or disturb any person by the making of obscene remarks or such remarks and actions as would humiliate, insult, or scare any person[.]” …

Appellant was loudly preaching against homosexuality on a public sidewalk in downtown Greenville. Officer Patricia Mullinax cited Appellant for violating the ordinance after he directed a comment to three young women as they passed by. Two of the women testified Appellant yelled to them, “Faggots, you will burn in hell.” Officer Mullinax testified she cited Appellant as a result of the comment he directed at the women…. The jury found Appellant guilty of violating the ordinance, and the trial judge imposed a fine of $200….

[“]The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise Judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.[“] …

We find subsection (3) is unconstitutionally vague because the words “humiliate,” “insult,” and “scare” are not sufficiently definite to give reasonable notice of the prohibited conduct. This provision is subjective because the words that humiliate, insult, or scare one person may not have the same effect on another person. Therefore, people of common intelligence may be forced to guess at the provision’s meaning and may differ as to its applicability. Subsection (3) … is not precisely written in a way that would notify a person of the certain specific conduct that is prohibited. Accordingly, we find subsection (3) is unconstitutional because it is facially vague.

The court had no occasion to decide whether the insults could be punished under a more precisely and narrowly drafted statute, such as bans on fighting words. Nor did it have occasion to decide whether a ban limited to words that “humiliate, insult, or scare a reasonable person” would be precise enough to avoid being unconstitutionally vague, or would be narrow enough to avoid being struck down on grounds of overbreadth. (In my view a ban on speech that humiliates or insults a reasonable person would be unconstitutional, unless it is limited to speech that fits within the “fighting words” exception or some other exception.)

Thanks to my friend and law school classmate David Garrett for the pointer.

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