NIYA KENNY v. ALAN WILSON
US Court of Appeals for the Fourth Circuit, Diaz, March 15, 2018,
Standing – Students previously arrested for violating South Carolina disorderly conduct laws had standing to sue based on a likelihood of being arrested again under the laws as well as chilling of free speech in order to avoid arrest

Facts:
South Carolina’s Disorderly Conduct law makes it illegal to “use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church”
South Carolina’s Disturbing Schools law makes it illegal to “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”
Students challenged these laws as unconstitutional, claiming that the statutes violated their right to due process under the Fourteenth Amendment because they fail to provide sufficient notice of prohibited conduct and encourage arbitrary and discriminatory enforcement.
They claimed that students as young as seven-years-old had been criminally charged for cursing, refusing to follow directions, or getting in a physical altercation that doesn’t result in any injuries. These statutes are alleged to be “among the leading reasons young people enter the juvenile justice system in South Carolina,” with over 9,500 juveniles referred from 2010-2016 for violating the Disturbing Schools Law alone. Moreover, the students alleged that the laws were enforced in a racially discriminatory manner, with black students more than six times as likely to be charged as white students.
The district court dismissed the case for lack of standing because the students could not demonstrate that they were likely to be harmed.
The students appealed, arguing that they had already suffered harm in that their speech was “chilled” because they did not know the circumstances that would cause them to be arrested. Moreover, some of them had actually been arrested and charged with these crimes previously.

Held: The Fourth Circuit held that the students had standing to challenge the law. The case was sent back to district court to decide the case on the merits.

Standing – To sue to overturn a law, a plaintiff must have “standing” to challenge the law in question. This requires that they show that they have a “personal stake in the outcome.”

Standing – To have standing, a plaintiff must:
(1) suffered an injury in fact;
(2) that injury must be fairly traceable to the challenged conduct; and
(3) they must show that the injury is likely to be redressed by a favorable judicial decision

Standing – Standing requires more than the possibility that the plaintiff will be harmed by a law. However, if injury under the law is “impending” or there is a “substantial risk that the harm will occur,” then standing has been established.

Standing – Standing to challenge a crime can be established by showing a “credible threat of prosecution” based on the plaintiff’s intent to engage in a course of conduct that would conflict with the law

From the Case: “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 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.”

Standing – Standing to challenge a crime can also be established by showing that self-censorship has occurred to avoid conflict with the law, thus “chilling” the plaintiff’s First Amendment rights.

From the Case: “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.”