Is South Carolina's statute making it a misdemeanor to disturb religious worship (S.C. Code § 16-17-520) constitutional, and can it be enforced against protesters who use blasphemous, profane, or obscene language near churches?

Plain-English summary

Myrtle Beach Police Chief Amy Prock asked whether South Carolina's century-old statute against disturbing religious worship, S.C. Code § 16-17-520, can constitutionally be enforced against protesters who use blasphemous, profane, or obscene language near a church. AG Wilson gave a layered answer.

The statute has two relevant subsections:

• Subsection (a): Makes it a misdemeanor to "wilfully and maliciously disturb or interrupt any meeting, society, assembly or congregation convened for the purpose of religious worship."
• Subsection (c): Makes it a misdemeanor to "use blasphemous, profane or obscene language at or near the place of meeting."

On subsection (a) (disturbance): Likely constitutional. South Carolina cases like State v. Jones (1907) and State v. Matheny (1919) have upheld convictions for riot-like disturbances near churches. The "willfully and maliciously" element imposes a meaningful mental-state requirement: "malice" in the legal sense means doing something wrongful intentionally, without just cause or excuse, with reckless or wanton disregard for others. The AG argues that conduct meeting that mental-state test is unlikely also to be protected expressive conduct, because expressive conduct legally protected by the First Amendment is by definition not "wrongful without justification." Even where there is real First Amendment value in the protest, the as-applied analysis under cases like Snyder v. Phelps shows the statute can coexist with protected speech: in Snyder, the Westboro Baptist Church picketers protested on public land near a military funeral without disrupting it, and the Supreme Court held that speech was protected. A facial challenge to subsection (a) is unlikely to succeed.

On subsection (c) (blasphemous, profane, obscene language): Mixed.

• "Profane" and "obscene" language. The First Amendment does not protect obscene speech, and Supreme Court cases like Chaplinsky v. New Hampshire (1942) treat profane and obscene utterances as outside the protection of the Free Speech Clause. The South Carolina Supreme Court in State v. Bouye (1997) confirmed that statutes targeting obscenity can stand.
• "Blasphemous" language. Federal cases including Kalman v. Cortes, 723 F. Supp. 2d 766 (E.D. Pa. 2010), have held that blasphemy statutes typically violate the Establishment Clause because they protect Christianity over other religions. The AG predicts a court would likely strike the "blasphemous" word in subsection (c) if challenged.

Severability: If the blasphemy prohibition fell, the rest of subsection (c) ("profane or obscene") could still be enforced. Under Fairway Ford, Inc. v. Timmons (S.C. 1984), an unconstitutional part of a statute can be severed if the remainder is complete in itself and the legislature would have passed it independently. The AG predicts this severability test would be satisfied here.

Three sub-questions from Chief Prock:

1. Can subsection (c) be enforced against protesters using profane or obscene language from the public right-of-way outside the church while congregants enter or leave? Under Matheny, yes, because the statute covers disturbances "in convening for the purpose of religious worship, or while actually engaged therein, or in dispersing." Whether a charge is warranted is fact-specific; the AG recommends consulting the local solicitor.
2. Can subsection (a) be enforced when protesters follow churchgoers from the church campus to an off-site event? Yes, Matheny extends to the "dispersing" phase; again, facts matter.
3. If a church holds service on the beach or elsewhere off campus, is that a "place of meeting" under subsection (c)? Yes. The statute does not require the church to own or lease the property; it just requires that the disturbance occur "at or near the place of meeting."

Bottom line: All of § 16-17-520 is presumed valid until a court rules otherwise. Cox v. Bates (S.C. 1960) makes that presumption strong, with statutes invalidated "only when its invalidity appears so clearly as to leave no room for reasonable doubt." Police and prosecutors can enforce the statute, but anyone challenging it has Kalman-style arguments available against the blasphemy clause.

What this means for you

For South Carolina police chiefs and officers responding to protests at religious services: You can charge under § 16-17-520(a) when conduct is willful, malicious, and actually disrupts a service or its convening/dispersing phase. You can charge under § 16-17-520(c) when the speech is obscene or profane at or near the place of meeting. Tread carefully on charges based purely on "blasphemous" language; that prong has a credible constitutional challenge that a defendant might raise successfully. Document the disruptive impact, not just the content of the speech.

For prosecutors evaluating whether to charge: The mental-state element matters. Subsection (a) requires willful and malicious disturbance. Random or accidental noise does not satisfy this. Conduct done deliberately to interfere with the worship service, with reckless or wanton disregard for the congregation's right to worship, satisfies the standard. Pair the charge with surrounding-circumstances evidence (signs, prior threats, timing, repeated visits) when possible.

For protesters or activist groups planning demonstrations near churches: Snyder v. Phelps protects peaceful, content-based protest from public property near a religious event, but only if you do not disrupt the service. Stay on public right-of-way. Avoid obscene or profane language directed at congregants. Avoid blocking ingress or egress. Follow any police-imposed buffer instructions. Speech that addresses public concerns from a non-disruptive distance is protected; speech designed to drown out a worship service is not.

For churches dealing with disruption: The legal protection of § 16-17-520 extends to off-site church events (under Matheny) and to gatherings convening or dispersing, not just to active worship. Document incidents and call police promptly. The "willful and malicious" element is more easily proved with patterns of repeated disruption than with single incidents.

For First Amendment attorneys considering a challenge: The blasphemy clause in subsection (c) is the cleanest target. Kalman v. Cortes provides a federal-court roadmap. The remainder of the statute will be harder to strike, especially given the AG's acknowledgment that profane and obscene speech is unprotected under Chaplinsky.

Common questions

Q: What does "willful and malicious" mean in this statute?
A: In its legal sense (per Margolis v. Telech and State v. Howell), "malice" means the deliberate, intentional doing of a wrongful act without just cause or excuse. It does not require personal hatred. The AG cites State v. Heyward for the rule that legal malice "signifies rather a general malignant recklessness of the lives and safety of others." So the statute requires conduct done intentionally, without legal justification, and with reckless or wanton disregard for the worshipers.

Q: Did the U.S. Supreme Court's Snyder v. Phelps case knock out this statute?
A: No. Snyder (2011) held that the Westboro Baptist Church's picketing near a funeral was protected speech because it (a) addressed matters of public concern, (b) took place on public property, (c) was peaceful, and (d) did not itself disrupt the funeral. The AG opinion notes that the Snyder facts would not have violated § 16-17-520 either, because there was no disturbance and no profanity at or near the meeting. The two precedents coexist.

Q: Can the statute be enforced against speakers outside on a public sidewalk?
A: Yes, but with care. The statute applies "at or near" the place of meeting. Protesters on a public sidewalk are arguably "near" the church. The constitutional question is whether their speech is protected. Speech on a matter of public concern that does not disrupt the service is protected under Snyder. Speech specifically designed to drown out worship, or speech using obscene or profane terms directed at congregants, can be charged.

Q: What about an off-site church event, like a baptism at a pond?
A: Per State v. Matheny (1919), the statute covers all phases of religious worship including dispersing and the convening of follow-on events. A baptism at a pond a mile from the church can fall within "the place of meeting." The statute does not require the church to own the property.

Q: Are blasphemy statutes really unconstitutional?
A: Federal courts that have addressed them generally say yes when the statute is interpreted to protect Christianity. Kalman v. Cortes (E.D. Pa. 2010) is the leading recent decision. The reasoning is that singling out blasphemy as criminal favors religions whose tenets the speech offends, which violates the Establishment Clause. South Carolina's § 16-17-520(c) has not yet been tested on this ground.

Q: What is the test for whether part of a statute can be saved if part is unconstitutional?
A: Under Fairway Ford, Inc. v. Timmons (S.C. 1984), if the unconstitutional part is so connected to the rest that the legislature would not have passed the rest without it, the whole statute falls. If the rest is "complete in itself, capable of being executed, wholly independent of that which is rejected," and the legislature would have passed it anyway, the rest survives. The AG predicts that subsection (c)'s "profane or obscene" prohibitions could survive without "blasphemous."

Q: What is the Chaplinsky fighting-words doctrine?
A: Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), recognized that certain "well-defined and narrowly limited classes of speech" (lewd, obscene, profane, libelous, fighting words) are unprotected. The AG opinion relies on Chaplinsky and on the South Carolina Supreme Court's State v. Bouye (1997) for the proposition that profane and obscene speech can be regulated.

Q: Until a court rules on these constitutional questions, what should officers do?
A: Enforce the statute as written. Cox v. Bates establishes a strong presumption of constitutionality. Officers acting in good faith on a statute that has not been judicially invalidated are entitled to that presumption. The AG opinion gives officers the legal cover they need, with the caveat that the blasphemy prong is the most vulnerable.

Background and statutory framework

S.C. Code § 16-17-520 dates from the late 19th century. The statute remains on the books in essentially the same form, criminalizing four categories of behavior at or near religious worship: (a) willful and malicious disturbance; (b) entry while intoxicated; (c) use or sale of spirituous liquors, or use of blasphemous, profane, or obscene language; and (d) related offenses. Sentence: fine of $20-$100, imprisonment for 30 days to one year, or both.

The constitutional landscape has shifted dramatically since the statute's enactment. First Amendment doctrine has expanded to cover expressive conduct (Spence v. Washington 1974; O'Brien 1968), narrowed unprotected-speech categories (Chaplinsky doctrine is much narrower today than in 1942), and developed Establishment Clause limits on religion-protective statutes (federal cases on blasphemy laws since the 1970s).

Yet the statute has survived because:

• The "willful and malicious" mental-state element limits its reach to conduct done with bad intent.
• South Carolina courts have applied the statute to actual disruptive conduct, not pure speech (Jones, Matheny).
• The "profane or obscene" language tracks unprotected-speech categories the Supreme Court has consistently allowed states to regulate.

The blasphemy prong is the outlier. It has not been judicially tested in South Carolina, and federal cases predict it would fall on First Amendment / Establishment Clause grounds.

Citations and references

Statutes: S.C. Code § 16-17-520 (the operative statute); § 16-17-520(a) (willful disturbance); § 16-17-520(c) (blasphemous, profane, or obscene language).

Constitutional provisions: U.S. Const. amend. I (Free Speech, Establishment); S.C. Const. art. I, § 2 (Free Speech).

Cases: Cox v. Bates, 237 S.C. 198, 116 S.E.2d 828 (1960) (presumption of constitutionality); Fairway Ford v. Timmons, 281 S.C. 57, 314 S.E.2d 322 (1984) (severability); Stone v. Traynham, 278 S.C. 407, 297 S.E.2d 420 (1982); S.C. Tax Comm'n v. United Oil Marketers, 306 S.C. 384, 412 S.E.2d 402 (1991); State v. Jones, 77 S.C. 385, 58 S.E. 8 (1907) (riot near church conviction); State v. Matheny, 122 S.C. 459, 101 S.E. 661 (1919) (shooting on church property as service disperses); State v. White, 348 S.C. 532, 560 S.E.2d 420 (2002); In re Amir X.S., 371 S.C. 380, 639 S.E.2d 144 (2006); Spence v. Washington, 418 U.S. 405 (1974); United States v. O'Brien, 391 U.S. 367 (1968); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997); Margolis v. Telech, 239 S.C. 232, 122 S.E.2d 417 (1961); State v. Howell, 162 S.C. 394, 160 S.E. 742 (1931); State v. Heyward, 197 S.C. 371, 15 S.E.2d 669 (1941); State v. Ferguson, 91 S.C. 235, 74 S.E. 502 (1911); State v. Davis, 88 S.C. 229, 70 S.E. 815 (1911); Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D. Mo. 1969); Snyder v. Phelps, 562 U.S. 443 (2011); Kalman v. Cortes, 723 F. Supp. 2d 766 (E.D. Pa. 2010); Miller v. California, 413 U.S. 15 (1973); Douglas v. City of Jeannette, 130 F.2d 652 (3d Cir. 1942).

Prior AG opinions referenced: Op. S.C. Att'y Gen., 1986 WL 289760 (Feb. 26, 1986) (legal meaning of "malice").

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-constitutionality-of-s-c-code-section-16-17-520/
• Original PDF: https://www.scag.gov/media/lysh1lkp/procka-os-10996-final-opinion-5-28-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

May XX, 2025

Chief Amy S. Prock
City of Myrtle Beach
Police Department
1101 N. Oak Street
Myrtle Beach, SC 29577

Dear Chief Prock:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter requests an opinion addressing the following:

I am requesting your opinion on enforcement of the South Carolina Code of Laws § 16-17-520, entitled "Disturbance of religious worship," as it applies during an active protest. This statute provides:

Any person who shall (a) wilfully and maliciously disturb or interrupt any meeting, society, assembly or congregation convened for the purpose of religious worship, (b) enter such meeting while in a state of intoxication or (c) use or sell spirituous liquors, or use blasphemous, profane or obscene language at or near the place of meeting shall be guilty of a misdemeanor and shall, on conviction, be sentenced to pay a fine of not less than twenty nor more than one hundred dollars, or be imprisoned for a term not exceeding one year or less than thirty days, either or both, at the discretion of the court.

Section 16-17-520(c) makes it a misdemeanor to "use blasphemous, profane, or obscene language at or near the place of [religious] meeting." Before the Myrtle Beach Police Department takes action based on the referenced code section, I would like your opinion on whether subsection (c) violates the First Amendment of the United States Constitution and Section 2 of Article I of the South Carolina Constitution. I am likewise seeking an opinion as to the constitutionality of subsection (a), making it a misdemeanor to "willfully and maliciously disturb or interrupt any meeting, society, assembly or congregation convened for the purpose of religious worship," if the behavior causing the disturbance or interruption constitutes expressive conduct under the First Amendment.

Assuming the state statute is constitutional, I would also appreciate your opinion on the following three questions:

1. Is § 16-17-520(c) violated by protestors' use of blasphemous, profane or obscene language from the public right-of-way outside the church while churchgoers are entering or exiting the place of worship?

2. Is § 16-17-520(a) violated by protestors following churchgoers from the church campus to an off-site church event?

3. If the church has a service on the beach or anywhere apart from its campus, is that a "place of meeting" for purposes of subsection (c)?

Law/Analysis

Your letter questions whether two portions of S.C. Code § 16-17-520 violate the federal constitution and our state constitution. The cited constitutional provisions relate to the prohibition on the government establishing a religion or prohibiting the free exercise of religion, freedom of speech, freedom of the press, the right to peaceful assembly, and the right to petition the government. Presumably, the primary concern is whether the statute abridges the freedom of speech, and generally involves determining what type of protection is afforded to different categories of speech.

Initially, it must be stated that legislation enacted by the General Assembly is presumed valid and enforceable until a court rules otherwise. The Supreme Court of South Carolina explained this presumption and the standard by which a court will declare a statute unconstitutional:

The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution; a statute will, if possible, be construed so as to render it valid; every presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution.

Cox v. Bates, 237 S.C. 198, 208-09, 116 S.E.2d 828, 832 (1960).

Conclusion

It is this Office's opinion that S.C. Code § 16-17-520 does not violate the first amendment to the federal constitution or Article I, § 2 of the South Carolina State Constitution. Legislation enacted by the General Assembly is presumed valid and enforceable until a court rules otherwise. Subsection (c) states any person that "use[s] or sell[s] spirituous liquors, or use blasphemous, profane or obscene language at or near the place of meeting" is guilty of a misdemeanor. Obscene and profane language are generally held to be "no essential part of any exposition of ideas" such that they are unprotected under the first amendment. Chaplinsky, supra; see also Bouye, supra. Statutes regulating blasphemous language, however, have been found unconstitutional as courts have interpreted them to protect or promote Christianity. See Kalman v. Cortes, 723 F. Supp. 2d 766, 775 (E.D. Pa. 2010). If a court rules the prohibition on blasphemous language at or near a place of meeting runs afoul of the state and federal constitutions, it would then determine whether the remainder of the statute is separable and capable of being executed without the offending provision. See Fairway Ford, Inc. v. Timmons, supra. A court may well hold that the prohibition on blasphemous language is severable from the remainder of subsection (c) such that the Legislature's intent can still be fulfilled in its absence. Yet, until a court holds that any part of the statute is unconstitutional, it is presumed to be valid and enforceable. See Cox v. Bates, supra.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General