Petition for Writ of Certiorari — Thomas Charles Felton Jones, Petitioner v. South Carolina

Supreme Court briefAug 6, 2024

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Text

ORIGINAL

FILED

AUG 0 8 2024

24=144:

In The

OF-^CE

S’.-, REM

Supreme Court of tfje QHmtefc H>tateo

TbomasCharles Felton Jones.

Petitioner.

v-.

STATE-OFSbuTHGAEdElNA.,

Respondent'.

On Petition for a Writ of Certiorari

to the South Carolina Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Andre Ta Nguyen

Counsel of Record

Michael G. Martinez

Thirteenth Circuit Public

Defender Office

305 E. North Street

Suite 123

Greenville, S.C. 29601

(864) 467-8522

(anyugen@greenvillecounty.org)

August 6, 2024

Attorneys for Petitioner

rwr CLERK

■ ~RT, U.S.

QUESTION PRESENTED

Whether a county ordinance that criminalizes any

verbal act that resists, hinders, impedes, or interferes

with a law enforcement officer is facially invalid be

cause it is substantially overbroad and violates the

First Amendment?

Ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED.................... ................

TABLE OF CONTENTS.......................................

STATEMENT OF RELATED PROCEEDINGS.

APPENDIX TABLE OF CONTENTS..................

TABLE OF AUTHORITIES............ ......................

PETITION FOR WRIT OF CERTIORARI.........

OPINION BELOW...................................................

JURISDICTION.......................................................

CONSTITUTIONAL PROVISIONS AT ISSUE.

STATUTORY PROVISIONS AT ISSUE.............

INTRODUCTION....................................................

STATEMENT OF THE CASE...............................

REASONS FOR GRANTING CERTIORARI......

The South Carolina Supreme Court ig

nored the special nature of First

Amendment overbreadth challenges

and disregarded controlling precedent

of this Court.....................................................

A. The South Carolina Supreme Court

misinterpreted

Washington

State

Grange

Washington

State

Republican Party and disregarded

precedent on overbreadth challenges ......

B. The South Carolina Supreme Court’s

decision conflicts with City of Houston

v. Hill....................................... .......................

CONCLUSION........................................... .............

STATEMENT OF RELATED PROCEEDINGS

The proceedings identified below are directly related

to the above-captioned case in this Court.

The State v. Thomas C. Jones, 2018-GS-2307031, Judgment entered Jan. 14, 2020 (Green

ville County Circuit Court)

The State v. Thomas Charles Felton Jones,

2020-000108, transferred to South Carolina Su

preme Court by order filed Nov. 15, 2022 (South

Carolina Court of Appeals)

The State v. Thomas Charles Felton Jones,

2020-000108, 901 S.E.2d 284 (S.C. 2024), Judg

ment entered May 8, 2024 (South Carolina Su

preme Court)

APPENDIX TABLE OF CONTENTS

Appendix A - Opinion of the South Carolina Supreme

Court

1-2, 6, 8, 10-13, 19

Appendix B - Trial Transcript Excerpts, S.C. Circuit

Court

2, 4-7, 15-16, 20

Appendix C - Ordinance .... 1-2, 4, 11-12, 14-15, 17, 20

Appendix D - Petitioner’s Pretrial Motion

Appendix E — State’s Exhibit # 2........... .

5-6, 19-20

TABLE OF AUTHORITIES

Page

CASES

Americans for Prosperity Found, v. Bonta

594 U.S. 594 (2021).........

Broadrick v. Oklahoma

413 U.S. 601 (1973).........

City of Chicago v. Morales

527 U.S. 41 (1999).......... .

City of Houston v. Hill

2-3, 7, 9, 13-17, 20-21

482 U.S. 451 (1987).... ....

Lewis v. City of New Orleans

415 U.S. 130 (1974).........

16-17, 20

Moody v. NetChoice, LLC

144 S. Ct. 2383, 2024 U.S. Lexis 2884 *23

(July 1, 2024)...................................................... 12-13

NAACP v. Button

371 U.S. 415 (1963)........................... ............... 19-20

New York Times Co. v. Sullivan

376 U.S. 254 (1964).....................................'......

Roth v. United States

354 U.S. 476 (1957)........................................... 17-18

Stromberg v. California

482 U.S. 359 (1931)...........................................

Thornhill v. Alabama

310 U.S. 88 (1940)............................................. ... 17

United States v. Hansen

599 U.S. 762 (2023).................;......................... 11-12

United States v. Stevens

559 U.S. 460 (2010)............................... ............

Vll

United States v. Williams

553 U.S. 285 (2008).................................... :........

Washington State Grange v. Washington State

Republican Party

552 U.S. 442 (2008)

3, 8, 10-11, 13

Whitney v. California

274 U.S. 357 (1927)

CONSTITUTIONAL PROVISIONS

U.S. Const. Am. I.....

1, 2-3, 8-14, 16-17, 19-20

U.S. Const. Am. XIV

................................. 1, 7-8

STATUTES, ORDINANCES, REGULATIONS,

AND RULES

Greenville Co. Code of Ordinances § 15-10

1, 2, 4,11-12, 14-15,17, 20

(2006)

S.C. Code Ann. § 16-9-320(B)................................

28 U.S.C. § 1257(a)................... ..............................

City of Houston, Texas, Code of Ordinances

§ 34-11(a) (1984)......................................................

OTHER MATERIALS

Merriam-Webster Dictionary

PETITION FOR WRIT OF CERTIORARI

Petitioner Thomas Charles Felton Jones respect

fully petitions for a writ of certiorari to review the

judgment of the South Carolina Supreme Court.

OPINION BELOW

The opinion of the South Carolina Supreme Court is

reported at State v. Thomas Charles Felton Jones, 901

S.E.2d 284 (S.C. 2024) and is reproduced at Appendix

A-l.

JURISDICTION

The South Carolina Supreme Court issued its opin:

ion on May 8, 2024. This Court has jurisdiction under

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

“Congress shall make no law . . . abridging the free

dom of speech ...” U.S. Const. Am. I

“[N]o state shall. .. deprive any person of life, lib

erty, or property, without due process of law ... .” U.S

Const. Am. XIV.

STATUTORY PROVISIONS INVOLVED

“It shall be unlawful for any person within the un

incorporated area of the county to ... by any act,

physical or verbal, resist, hinder, impede or interfere

with any law enforcement offer in the lawful discharge

of his or her duty, or to aid or abet any such act.”

Greenville Co. Code of Ordinances § 15-10(b); App. C1.

■v.

INTRODUCTION

Petitioner Thomas Charles Felton Jones’s case pre

sents this Court with the opportunity to enforce its de

cision in City of Houston v. Hill, 482 U.S. 451 (1987),

and reaffirm the rights preserved by the First Amend

ment. Despite the existence of Hill for the last thirtysix years, Greenville County, South Carolina has en

forced a nearly identical ordinance since 2006 that

criminalizes “any act, physical or verbal” that “resist[s], hinder[s], impede[s] or interfere[s]” with a law

enforcement officer. See Hill, 482 U.S. at 455 (noting

the Houston ordinance prohibited any person to “in

terrupt any policeman in the execution of his duty”).

App. C-l. Jones was arrested, convicted, and sen

tenced to incarceration under this ordinance because

of his verbal criticism of the deputies during a traffic

stop he observed occurring outside of his home while

he stood on his own property. App. B-l-39.

The South Carolina Supreme Court’s refusal to ad

dress Jones’s facial challenge to the ordinance on First

Amendment overbreadth grounds allows the contin

ued criminalization of a substantial amount of consti

tutionally protected speech and the daily suppression

of speech in Greenville County. The supreme court

found Jones’s experience “appalling” and the officers’

behavior “egregious” but nonetheless declined to reach

the facial challenge because of a “preference for re

straint.” App. A-5. Yet, such restraint is inconsistent

with this Court’s precedent on overbreadth facial chal

lenges under the First Amendment and fails to recog

nize the impact of the continued existence of this fa

cially unconstitutional ordinance on the rights of

Greenville County citizens to engage in protected

speech.

This Court should grant certiorari for two reasons.

First, the South Carolina Supreme Court’s reliance on

a preference for judicial restraint rests on a flawed in

terpretation of this Court’s decision in Washington

State Grange v. Washington State Republican Party,

552 U.S. 442 (2008). This misinterpretation ignores

this Court’s precedent regarding the special standard

for facial challenges to First Amendment restrictions

on overbreadth grounds.

Second, the ruling of the South Carolina Supreme

Court conflicts with the controlling decision of this

Court in Hill. The Greenville County ordinance crim

inalizes the exercise of free speech in precisely the

same manner as the ordinance in Hill, criminalizing a

substantial amount of protected speech. The ordi

nance remains in effect more than four years after

Jones’s conviction, subjecting countless people to con

viction and incarceration for engaging in protected

speech. Equally as troubling, the mere threat and fear

of arrest, conviction, and incarceration under this or

dinance chills speech critical of law enforcement and

government. The risks presented by the language of

the ordinance are only exacerbated further by the un

fettered discretion the ordinance affords law enforce

ment officers.

Allowing the South Carolina Supreme Court’s deci

sion to stand and require case-by-case review of the

ordinance’s constitutionality poses severe risks to the

exercise of free speech protected by the First Amend

ment. Review of the supreme court’s decision is neces

sary to protect the rights of Greenville County resi

dents and people around the Nation silenced by com

parable ordinances. The threat of conviction and in

carceration for engaging in speech critical of the gov

ernment casts a chilling shadow on one of this Na

tion’s most fundamental rights. This case is a chance

for this Court to reaffirm the protections of the First

Amendment and to remind municipalities around the

Nation of this Court’s decision in Hill.

STATEMENT OF THE CASE

On October 17, 2006, the Greenville County, South

Carolina County Council adopted ordinance no. 4053,

which enacted section 15-10, titled “Interfering with a

County Law Enforcement Officer.” App. C-l. The ordi

nance provides:

It shall be unlawful for any person

within the unincorporated area of the

county to commit an assault, battery or

by any act, physical or verbal, resist, hin

der, impede or interfere with any law en

forcement officer in the lawful discharge

of his or her duty, or to aid or abet any

such act.

Greenville Co. Code of Ordinances § 15-10(b); App. C.1. Violation of this overly broad language is a misde

meanor punishable by up to thirty days’ incarceration.

Id. at § 15-10(c)(l); App. C-l.

Relevant Facts

Petitioner Thomas Charles Felton Jones encoun

tered the unfettered discretion the ordinance affords

to Greenville County law enforcement officers on July

21, 2018, during an interaction between himself and

Deputy Charles Lancaster, of the Greenville County

Sheriffs Office. App. B-14-15, 26—30. Deputy Lancas

ter and Deputy Jonathan Cooper initiated a traffic

stop on Jones’s friend, Shontona Enicha Williams, out

side Jones’s house. App. B-12-13; 23-25. Jones exited

the rear of his house to observe the traffic stop from

his own property. App. B-12-14; 24—27. Deputies Lan

caster and Cooper testified that Deputy Lancaster re

quested Jones to back up. App. B-14—15; 27-30. Yet,

Deputy Lancaster was unable to identify an instance

on his body worn camera recording of asking Jones to

back away until the moment immediately before

Jones’s arrest—and immediately after Jones verbally

criticized the officers. App. B-30—33; App. E-l at 4:10

to 4:25.

Jones peacefully asked the officers why Williams

was pulled over. App. B-14—15; 26-28. Deputy Lancas

ter responded that Williams failed to use her turn sig

nals. App. E-l at 1:55 to 2:30. At this point, Deputy

Lancaster asked Jones, “Do you need anything man?”

App. E-l at 2:47. Jones informed Deputy Lancaster

that he and Williams were friends and that Williams

was staying at his house for the night. App. E-l at

2:55-3:01. Jones informed Deputy Lancaster that he

and the other deputy were at his property. App. E-l at

2:59. During this time, Jones took a few steps back

and continued to observe the traffic stop. App. E-l at

3:08.

While Williams and Deputy Cooper discussed the

traffic stop, several more officers arrived pursuant to

an earlier call for back up. App. E-l at 3:15-4:10. Jones

questioned the necessity of the extra back up and dis

puted the officers’ assertions that there was a large

group of people in the area. Id. The following ex

change, which lasted only eleven seconds, occurred:

Jones: “They know damn well there was

no big group of people out here.”

Deputy Lancaster: “Alright man, do you

need to be here?”

Jones: “Yeah, this is my house.”

Deputy Lancaster: (pointing toward the

house) “You can go back there, or you can

be arrested for interfering. Step back.”

Jones: [Does not move]

Deputy

Lancaster:

around.”

“Alright,

turn

App. E-l at 4:14 to 4:25. At that moment, “[b]oth

deputies rushed toward Jones, tackled him, tased him,

handcuffed him, and then arrested him.” App. A- 2.

Jones lost consciousness during the officers’ assault.

App. A-3; App. E-l at 7:00-7:30. Before the officers

rushed toward him, Jones had observed the traffic

stop from the same location for over a minute without

issue. App. E-l at 3:15-4:14. It was only after he made

a comment critical of the officers that he was suddenly

“interfering” with the deputies. Id.

Deputy Cooper testified concerning the Sheriffs Of

fice policies and procedures regarding proximity of by

standers. App. B-18-19. Deputy Cooper testified that

interference is committed whenever any bystander’s

presence distracts him from the crime scene or inves

tigation. App. B-18,1.10-15. Deputy Cooper elaborated

on his interpretation of the ordinance: “interfering is

when a defendant, person, whoever, if they take my

attention away from the investigation. So therefore,

hindering me from doing my job.” App. B-19-20,1. 2124. Deputy Cooper testified that Jones’s “walking up

and talking” loud enough to be heard constituted the

offense, because:

I’m now having to take my attention off

just [Williams] and now trying to run

everything on my computer so on and so

forth. Well now, I have some random per

son just walking up that I don’t know

from Adam. So therefore, my attention is

divided away from what I need to be do

ing.

App. B-20-21,1. 18-24.

Procedural History/Raising of Federal Issue

After his arrest that night, the deputies ultimately

charged Jones with interfering with a law enforce

ment officer (Greenville County Ordinance § 15-10)

and resisting arrest with assault (S.C. Code Ann. § 169-320(B)). App. B-14—18; 47—49. The Greenville

County Grand Jury subsequently indicted Jones for a

single count of Resisting Arrest with Assault and a

single count of Interfering with a County Law En

forcement Officer. On January 14, 2020, the State

called Jones’s case to trial before the Honorable Robin

B. Stilwell and a jury.

Prior to trial, Jones moved to dismiss the charges,

arguing the ordinance was facially invalid because it

was unconstitutionally overbroad and vague, in viola

tion of the First and Fourteenth Amendments to the

United States Constitution and the Due Process

Clauses of the United States and South Carolina Con

stitutions. App. B-l-12. Jones also submitted a writ

ten memorandum outlining his objections to the ordi

nance. App. D-l-6. Jones relied primarily upon City of

Houston v. Hill, 482 U.S. 451 (1987). At the end of the

State’s case, Jones renewed his facial challenge and

also moved to have the ordinance invalidated as ap

plied. App. B-34,1. 17-20. The trial court denied all the

motions. App. B-36-37.

The jury convicted Jones of Interfering with a

County Law Enforcement Officer and acquitted him of

Resisting Arrest with Assault. App. B-37, lines 4-8.

Jones was sentenced to thirty days’ incarceration and

a fine of $1,000, suspended upon the service of ten

days’ incarceration (served on weekends) and pay

ment of a fine of $500, plus costs and assessments.

App. B-39, 1. 20-25. Jones served ten days’ incarcera

tion and paid a $500 fine plus costs and assessments.

Following sentencing, Jones served a Notice of Ap

peal on January 21, 2020. Jones appealed his convic

tion to the South Carolina Court of Appeals. Following

the filing of briefs, jurisdiction of the appeal was

transferred to the South Carolina Supreme Court on

November 15, 2022, because it challenged the consti

tutionality of an ordinance. See App. A-3. The South

Carolina Supreme Court heard oral argument on June

6, 2023. App. A-l. Jones argued before the South Car

olina Supreme Court that the ordinance was both fa

cially invalid on overbreadth grounds and unconstitu

tional as applied to him under the First Amendment

and Fourteenth Amendment of the United States Con

stitution. See App. A-4

The South Carolina Supreme Court issued its opin

ion on May 8, 2024, reversing Jones’s conviction on his

as-applied challenge. App. A-l. However, the supreme

court declined to address the broader facial challenge

to the ordinance, reasoning that it should decide the

case on the narrowest grounds possible. App. A-4—7.

In its justification, the supreme court cited to this

Court’s decision in Washington State Grange v. Wash

ington State Republican Party, 552 U.S. 442 (2008) for

the proposition that exercising restraint on facial chal

lenges is preferable. App. A-4—5.

The supreme court concluded that Jones did nothing

more than observe and ask questions of the officers,

noting that “there is no indication Jones did anything

beyond engage in protected speech.” Id. Despite recog

nizing the tremendous discretion that the ordinance .

affords law enforcement officers and the fact that it

“can be grossly abused,” the Supreme Court “de

cline [d] the temptation to go further than necessary

solely because of the egregious behavior of the depu

ties in this case.” App. A-4.

REASONS FOR GRANTING THE PETITION

The South Carolina Supreme Court ignored the

special nature of First Amendment overbreadth

challenges and disregarded controlling prece

dent of this Court.

Review is warranted here because the South Caro

lina Supreme Court erred in declining to reach the fa

cial challenge to the Greenville County ordinance un

der which Jones was arrested, convicted, and incarcer

ated.

First, the supreme court misinterpreted this Court’s

precedent on employing restraint to facial challenges,

ignoring the unique nature of overbreadth challenges

and the fundamental right to free speech. This flawed

adherence to “restraint” enables the continued crimi

nalization and suppression of protected speech and

ideas. The supreme court disregarded the fact that re

strictions on the First Amendment are subject to

heightened standards inapplicable in other contexts

and disregarded the tests this Court has announced in

evaluating facial challenges on First Amendment

overbreadth grounds.

Second, the supreme court ignored the fact that the

ordinance’s constitutionality is controlled by this

Court’s precedent in Hill, which invalidated an ordi

nance that criminalized speech in near-identical ways

as the ordinance here. Despite the similarity of the or

dinances, the significant infringement on citizens’

rights to engage in protected speech, and the fact that

its decision sanctions the ongoing chilling of speech,

the supreme court elected instead to shield the ordi

nance from complete invalidation by relying on the du

bious notion that Jones’s case presents unique facts.

The foregoing reasons demonstrate that the South

Carolina Supreme Court erred in declining to reach

Jones’s facial challenge and review is warranted.

A. The South Carolina Supreme Court’s deci

sion misinterprets Washington State Grange

and disregards this Court’s precedent on

overbreadth challenges

The South Carolina Supreme Court erred in relying

on this Court’s decision in Washington State Grange

to decline to reach Jones’s facial challenge. Specifi

cally, the supreme court improperly disregarded the

different test controlling facial challenges to substan

tially overbroad restrictions on speech under the First

Amendment. For this reason, the supreme court’s de

cision was error, certiorari should be granted, and the

ordinance facially invalidated.

In support of its decision to decline to reach the fa

cial challenge, the supreme court relied on the below

quoted language from this Court’s decision in Wash

ington State Grange:

Facial challenges are disfavored for sev

eral reasons. Claims of facial invalidity

often rest on speculation. As a conse

quence, they raise the risk of‘premature

interpretation of statutes on the basis of

factually barebones records.’

Exercising judicial restraint in a facial

challenge ‘frees the Court not only from

unnecessary pronouncement on constitu

tional issues, but also from premature in

terpretations of statutes in areas where

their constitutional application might be

cloudy.’

Jones, App. A-4—5 (quoting Wash. State Grange, 552

U.S. at 450).

The supreme court misinterpreted this Court’s pro

nouncement regarding a preference for restraint in fa

cial challenges by ignoring the fact that Washington

State Grange differed significantly from the type of fa

cial challenge here. App. A-4—5. First and foremost,

Washington State Grange did not address a facial

challenge on First Amendment overbreadth grounds,

as Jones does here. See id., 552 U.S. at 449-50. This

Court has repeatedly noted—including in Washington

State Grange—that such overbreadth facial chal

lenges are tested against a different standard. See id.

at 449 n.6 (“Our cases recognize a second type of facial

challenge in the First Amendment context under

which a law may be overturned as impermissibly over

broad because a substantial number’ of its applica

tions are unconstitutional, ‘judged in relation to the

statute’s plainly legitimate sweep.’” (emphasis

added)); see also United States v. Stevens, 559 U.S.

460, 473 (2010) (observing the difference between a

“typical facial attack” and a “second type of facial chal

lenge”); United States v. Hansen, 599 U.S. 762, 769-70

(recognizing a difference in standards for First

Amendment overbreadth facial challenges); City of

Chicago v. Morales, 527 U.S. 41, 79 n.2 (Scalia, J., dis

senting) (noting this Court’s decisions established

that “the overbreadth doctrine is a specialized excep

tion to the general rule for facial challenges, justified

in light of the risk that an overbroad statute will chill

free expression”).

In contrast to Jones’s facial challenge, Washington

State Grange involved a facial challenge to a newly

adopted—yet never implemented—law altering the

primary system in the State of Washington (Initiative

872). 552 U.S. at 455 (noting the law was never imple

mented); App. A-4 (describing Jones’s challenge); App.

C-l (reflecting that the ordinance was adopted in

2006). This Court made clear that the law was subject

not to the test for overbreadth challenges but instead

evaluated whether “the law is unconstitutional in all

of its applications.” Id. at 449-50 (emphasis added).

Furthermore, Initiative 872 had never actually been

implemented, preventing courts from ever having the

opportunity to construe the law or “accord the law a

limiting construction to avoid constitutional ques

tions.” Id. at 450, 455. Here, the Greenville County or

dinance has been in effect for eighteen years, and its

existence alone chills the exercise of protected speech

by its mere threat of enforcement. App. C-l.

Moreover, the supreme court in Jones’s case had the

opportunity to “accord the law a limiting construc

tion,” yet did not do so. See App. A-1—7. Instead, the

supreme court simply emphasized that the particular

facts rendered Jones’s arrest invalid, ignoring the spe

cial nature of First Amendment overbreadth chal

lenges and the rationale underpinning the different

test. Id. at 5-7. The overbreadth doctrine allows liti

gants “to challenge a statute, not because their own

rights of free expression are violated, but because of a

judicial prediction or assumption that the statute’s

very existence may cause others not before the court to

refrain from constitutionally protected speech or ex

pression.” Broadrick v. Oklahoma, 413 U.S. 601, 612

(1973) (emphasis added). The supreme court ignored

this principle in refusing to reach Jones’s facial chal

lenge, permitting the ongoing criminalization and

suppression of constitutionally protected speech.

Following the supreme court’s decision in Jones’s

case, this Court reiterated the different standard for

overbreadth challenges: “In First Amendment cases,

however, this Court has lowered that very high bar [in

typical facial challenges]. To ‘provideQ breathing room

for free expression,’ we have substituted a less de

manding though still rigorous standard.” Moody v.

NetChoice, LLC, 144 S. Ct. 2383, 2024 U.S. Lexis 2884

*23 (July 1, 2024) (quoting Hansen, 599 U.S. at 769).

This standard asks whether “a substantial number of

[the law’s] applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.”

Americans for Prosperity Found, v. Bonta, 594 U.S.

594, 615 (2021).

In Moody, this Court considered “whether two state

laws regulating social-media platforms and other web

sites facially violate the First Amendment.” 2024 U.S.

Lexis 2884 *13. Ultimately, this Court vacated the

Eleventh Circuit’s and Fifth Circuit’s decisions “be

cause neither Court of Appeals properly considered

the facial nature of NetChoice’s challenge” and re

manded the cases for further proceedings. Id. at 14,

27. Instead, the Courts of Appeals both treated each

challenge as an as-applied challenge, failing to per

form the “necessary inquiry” of “whether a law’s un

constitutional applications are substantial compared

to its constitutional ones.” Id. at 14-15. To do so, “a

court must determine a law’s full set of applications,

evaluate which are constitutional and which are not,

and compare the one to the other.” Id. at 15. Just like

the Eleventh and Fifth Circuit Courts of Appeals, the

South Carolina Supreme Court failed to perform this

“necessary inquiry.” See App. A-1-7.

Unlike in Moody, however, remand is unnecessary

and this Court can remedy the supreme court’s error

here because this Court already answered that in

quiry in the affirmative in Hill regarding a virtually

identical ordinance. See 482 U.S. at 466 (finding the

ordinance substantially overbroad because it “crimi

nalizes a substantial amount of constitutionally pro

tected speech, and accords the police unconstitutional

discretion in enforcement”). As discussed below, the

supreme court’s decision conflicts with controlling

precedent of this Court, ignoring the identical nature

of the ordinance in Jones’s case to the one invalidated

in Hill.

By misinterpreting this Court’s pronouncement in

Washington State Grange regarding judicial restraint

and disregarding the longstanding specialized stand

ard for First Amendment overbreadth challenges, the

South Carolina Supreme Court erred. This error is

compounded further by the supreme court’s failure to

recognize that Hill controls the correct outcome for

this ordinance—facial invalidation.

B. The South Carolina Supreme Court’s deci

sion conflicts with Hill.

Hill centered on a City of Houston, Texas ordinance:

It shall be unlawful for any person to as

sault, strike or in any manner oppose,

molest, abuse or interrupt any policeman

in the execution of his duty, or any per

son summoned to aid in making an ar

rest.

Code of Ordinances, City of Houston, Texas, § 34-ll(a)

(1984); See Hill, 482 U.S. 451. This Court held the or

dinance facially invalid because it was substantially

overbroad, concluding that the ordinance encom

passed a substantial amount of constitutionally pro

tected conduct. Hill, 482 U.S. at 460-66. The Green

ville County ordinance here is eerily similar to the

Houston ordinance:

It shall be unlawful for any person

within the unincorporated area of the

county to commit an assault, battery or

by any act, physical or verbal, resist, hin

der, impede or interfere with any law en

forcement officer in the lawful discharge

of his or her duty, or to aid or abet any

such act.

Greenville Co. Code of Ordinances § 15-10(b); App.

C-l. These similarities dictate the same result—facial

invalidation of the ordinance.

First, exactly as in Hill, “the enforceable1 portion of

the ordinance deals not with core criminal conduct,

but with speech.” Id. at 460; App. C-l. The remaining

non-preempted terms “resist,” “hinder,” “impede,” and

“interfere” are extraordinarily similar to the remain

ing terms in the Houston ordinance. Id. at 461 (noting

the enforceable portion of the ordinance prohibited a

person to “oppose, molest, abuse or interrupt” a police

officer); see Merriam-Webster Dictionary (noting op

pose is a synonym of resist); (defining “hinder” as “to

delay or prevent action”); (defining “interrupt” as “to

stop or hinder by breaking in”).

In effect, the enforceable terms of the ordinance all

encompass the notion of “interruption” or verbal chal

lenge to a police officer. Moreover, the ordinance’s

criminalization of verbally accomplishing such a re

sult infringes upon a significant range of constitution

ally protected speech. App. C-l. Indeed, Deputy

Cooper testified that his interpretation of “hindering”

was anything that could make him lose focus, includ

ing even a person “walking up and talking” loud

enough to be heard. App. B-21,1. 18-24. As a result, a

person violates this ordinance by any verbal act that

makes an officer lose focus or deviate from his or her

subjectively-defined duties, just like “the interrup

tion” criminalized by the Houston ordinance and that

this Court found unconstitutionally overbroad. 482

U.S. at 461, 466-67. The ordinance affords unlimited,

entirely subjective discretion, authorizing officers to

1 The City of Houston conceded that the other language in the

ordinance was preempted by various state laws, thereby leaving

an ordinance that prohibited verbal interruptions of police offic

ers. 482 U.S. at 460-61. Similarly, after excising the portions (the

commission of assault or battery on an officer) of the ordinance

here that are preempted by state law, the “enforceable” portion

criminahzes verbal interruptions or challenges of law enforce

ment officers. See App. C-l.

“arrest individuals for words or conduct that annoy

them.” Hill, 482 U.S. at 465.

As in Hill, the ordinance here encompasses a sub

stantial range of protected speech and conduct; nota

bly, it is not narrowly drafted so that its scope is lim

ited to fighting words. See 482 U.S. at 462 (comparing

restrictions on fighting words that “by their very ut

terance inflict injury or tend to incite an immediate

breach of the peace” (quoting Lewis v. City of New Or

leans, 415 U.S. 130, 132 (1974)). In fact, the breathtakingly broad scope espoused by Deputy Cooper re

flects an ordinance that subjects Greenville County

residents to criminal charges for even the most benign

questioning of an officer that, in his or her sole unfet

tered discretion, distracts from an investigation. App.

B-18—20, B-21,1. 18-24. Such suppression of the right

to engage in free speech is plainly and facially uncon

stitutionally overbroad under this Court’s decision in

Hill.

In evaluating the constitutionality of the Houston

ordinance, this Court considered its decision in Lewis,

which invalidated a statute that prohibited a person

to “curse or revile or to use obscene or opprobrious lan

guage toward” or referring to police officers. Id. at 462;

Lewis, 415 U.S. at 132. This Court determined the

Houston ordinance was more sweeping than the ordi

nance invalidated in Lewis since it was not even lim

ited to obscene or opprobrious language. Id. at 462. In

both instances, this Court facially invalidated the

laws as overbroad and violative of the First Amend

ment. See Lewis, 415 U.S at 133-34 (concluding the

state law is constitutionally overbroad and facially in

valid because it was “susceptible of application to pro

tected speech”).

The ordinance here is even more sweeping than the

ordinance in Hill (and therefore in Lewis), as it explic-

itly encompasses speech, whereas the Houston ordi

nance only implicitly included verbal acts. See App. C1. The criminalization of speech that is not limited to

even obscene or opprobrious language, let alone

fighting words, infringes upon a significant range of

protected speech—a constitutionally impermissible

restriction on the First Amendment.2 That is precisely

what the Greenville County ordinance does. Id. ■

As this Court observed, “[t]he Constitution does not

allow such speech to be made a crime. The freedom of

individuals verbally to oppose or challenge police ac

tion without thereby risking arrest is one of the prin

cipal characteristics by which we distinguish a free

nation from a police state.” Hill, 482 U.S. at 462-63.

The right to free speech is one of the most fundamen

tal guarantees of the Bill of Rights. Thornhill v. Ala

bama, 310 U.S. 88, 95 (1940). This Court has recog

nized the right to free speech includes the right to en

gage in even “vehement, caustic, and sometimes un

pleasantly sharp attacks on government and public of

ficials.” New York Times Co. v. Sullivan, 376 U.S. 254,

270 (1964). Police officers are not insulated from such

criticism or opposition. See Hill, 482 U.S. at 461 (rec

ognizing that “the First Amendment protects a signif

icant amount of verbal criticism and challenge di

rected at police officers”).

The importance of the right is based on the essential

nature of speech and the exchange of ideas to the or

derly implementation of government and a free soci

ety. See Roth v. United States, 354 U.S. 476, 484

(1957) (noting the right to free speech was “fashioned

2 Given that a “properly trained officer may reasonably be ex

pected to ‘exercise a higher degree of restraint,’” even the fighting

words exception might require a narrower application in cases

involving words addressed to a police officer. See Lewis, 415 U.S.

at 135 (Powell, J., concurring).

to assure unfettered interchange of ideas for the bring

ing about of political and social changes desired by the

people”); Stromberg v. California, 482 U.S. 359, 369

(1931) (“The maintenance of the opportunity for free

political discussion to the end that government may

be responsive to the will of the people and that

changes may be obtained by lawful means, an oppor

tunity essential to the security of the public, is a fun

damental principle of our constitutional system.”).

This Court has recognized the negative conse

quences of restrictions on the right to free speech:

Those who won our independence be

lieved .. . that public discussion is a po

litical duty; and that this should be a fun

damental principle of the American gov

ernment. They recognized the risks to

whiqh all human institutions are subject.

But they knew that order cannot be se

cured merely through fear of punishment

for its infraction; that it is hazardous to

discourage thought, hope and imagina

tion; that fear breeds repression; that re

pression breeds hate; that hate menaces

stable government; that the path of

safety lies in the opportunity to discuss

freely supposed grievances and proposed

.remedies; and that the fitting remedy for

evil counsels is good ones. Believing in

the power of reason as applied through

public discussion, they eschewed silence

coerced by law - the argument of force in

its worst form. Recognizing the occa

sional tyrannies of governing majorities,

they amended the Constitution so that

free speech and assembly should be guar

anteed.

Whitney v. California, 274 U.S. 357, 375-76 (1927)

(Brandeis, J., concurring). The harmful effects on so

ciety by the suppression of speech is precisely why this

Court has emphatically protected the right to free

speech and guarded against even the possible chilling

of speech and expression. NAACP v. Button, 371 U.S.

415, 433 (1963) (recognizing that the “threat of sanc

tions may deter their exercise [of First Amendment

freedoms] almost as potently as the actual application

of sanctions”).

The existence of the Greenville County ordinance

alone produces this “chilling effect.” Equally as con

cerning as the actual arrest, prosecution, and convic

tion for engaging in protected speech is the deterrent

effect on citizens exercising their First Amendment

rights out of fear of such consequences. See United

States v. Williams, 553 U.S. 285, 292 (2008) (recogniz

ing that “the threat of enforcement of an overbroad

law deters people from engaging in constitutionally

protected speech, inhibiting the free exchange of

ideas”).

The sequence of events leading up to Jones’s arrest

highlights the chilling effect and officers’ ability to use

the threat of arrest to deter the exercise of protected

speech. Jones calmly and quietly stood on his own

property while observing his friend’s traffic stop. App.

A-2—3. Jones then verbally criticized the additional

police presence when a backup officer arrived. Deputy

Lancaster immediately threatened Jones with arrest

for interfering if he does not go inside his home. App.

E-l at 4:14 to 4:25; App. A-2 (“You can go back over

there, or you can be arrested for interfering.”). Criti

cally, it was only after Jones verbally criticized the of

ficers’ actions that he was threatened with arrest.

This type of.threat serves to deter—and, therefore,

suppress—protected speech for fear of the conse

quences. Given Deputy Lancaster’s acquiescence to

Jones’s presence prior to the criticism, it is apparent

that Jones would not have been threatened with ar

rest had he not made the comment. App. E-l at 3:154:14. The subsequent arrest only underscores the risk

this ordinance presents in suppressing protected

speech. Moreover, Jones’s friend observed this entire

interaction, followed by Jones’s violent arrest and tasing by the officers, serving to deter her, as well as an

ybody she described the experience to, from ever mak

ing comments critical of officers. See App. E-l.

Finally, just like the Houston ordinance, this ordi

nance provides the police “with unfettered discretion

to arrest individuals for words or conduct that annoy

or offend them.” Hill, 482 U.S. at 465; App. C-l. The

virtually unlimited scope of the ordinance “effectively

grants police the discretion to make arrests selectively

on the basis of the content of the speech.” Id. at 465

n.15. The deputies’ interpretation of the ordinance

here as encompassing any verbal communication that

deviates their focus from the investigation demon

strates the extent to which protected speech is encom

passed by the ordinance. App. B-20, 1. 21-24. “The op

portunity for abuse, especially where a statute has re

ceived a virtually open-ended interpretation, is self-ev

ident.” Id. at 466 (quoting Lewis, 415 U.S. at 136 (em

phasis added)).

Greenville County’s ordinance, just like the one in

validated in Hill, “criminalizes a substantial amount

of constitutionally protected speech, and accords the

police unconstitutional discretion in enforcement.” Id.

at 466. “Far from providing the ‘breathing space’ that

‘First Amendment freedoms need. . . to sur

vive,’ . . . the ordinance is susceptible of regular appli

cation to protected expression.” Id. at 467 (quoting

Button, 371 U.S. at 433). As a result, the ordinance is

substantially overbroad and facially invalid.

The South Carolina Supreme Court’s decision ig

nored this Court’s decision in Hill and is therefore in

error. Jones accordingly requests this Court grant cer

tiorari and invalidate the ordinance on its face.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,