Schleifer v. City of Charlottes , 159 F.3d 843 ( 1998 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    DANIEL SCHLEIFER, a minor by Barry
    Schleifer, his father; WILLIAM
    MCCUTCHEON, a minor by M.
    Parthenia Monagan, his mother;
    LISA BRIGGS, a minor by Anne
    Briggs, her mother; NORA LALLY-
    GRAVES, a minor by Mary Ann
    Lally-Graves, her mother; JILL
    LANDERS JACQUITH, a minor by
    No. 97-1723
    Harry James Landers, her father;
    ANNE BRIGGS; HARRY JAMES
    LANDERS; WALDO DAVID LANDERS
    JAQUITH,
    Plaintiffs-Appellants,
    v.
    CITY OF CHARLOTTESVILLE,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Virginia, at Charlottesville.
    James H. Michael, Jr., Senior District Judge.
    (CA-97-21-C)
    Argued: May 5, 1998
    Decided: October 20, 1998
    Before WILKINSON, Chief Judge, and ERVIN and
    MICHAEL, Circuit Judges.
    _________________________________________________________________
    Affirmed by published opinion. Chief Judge Wilkinson wrote the
    majority opinion, in which Judge Ervin joined. Judge Michael wrote
    a dissenting opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Mary Catherine Bauer, AMERICAN CIVIL LIBERTIES
    UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
    Appellants. Lisa Robertson Kelley, OFFICE OF THE CITY ATTOR-
    NEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Deborah
    C. Wyatt, WYATT & CARTER, Charlottesville, Virginia, for Appel-
    lants. W. Clyde Gouldman, II, OFFICE OF THE CITY ATTORNEY,
    Charlottesville, Virginia, for Appellee.
    _________________________________________________________________
    OPINION
    WILKINSON, Chief Judge:
    This appeal involves a challenge to the constitutionality of a juve-
    nile nocturnal curfew ordinance enacted by the City of Charlottes-
    ville. The district court held that the ordinance did not violate the
    constitutional rights of minors, their parents, or other affected parties
    and declined to enjoin its enforcement. We agree that the ordinance
    is constitutional and affirm the judgment of the district court.
    I.
    On December 16, 1996, the Charlottesville City Council, after sev-
    eral months of study and deliberation, amended Section 17-7 of the
    City Code to enact a new juvenile nocturnal curfew ordinance. The
    City Council designed the curfew ordinance to:
    (i) promote the general welfare and protect the general pub-
    lic through the reduction of juvenile violence and crime
    within the City;
    2
    (ii) promote the safety and well-being of the City's youn-
    gest citizens, persons under the age of seventeen (17),
    whose inexperience renders them particularly vulnerable to
    becoming participants in unlawful activities, particularly
    unlawful drug activities, and to being victimized by older
    perpetrators of crime; and
    (iii) foster and strengthen parental responsibility for chil-
    dren.
    Charlottesville, Va., Code § 17-7, Intro.
    Effective March 1, 1997, the ordinance generally prohibits minors,
    defined as unemancipated persons under seventeen, from remaining
    in any public place, motor vehicle, or establishment within city limits
    during curfew hours. The curfew takes effect at 12:01 a.m. on Mon-
    day through Friday, at 1:00 a.m. on Saturday and Sunday, and lifts at
    5:00 a.m. each morning.
    The ordinance does not restrict minors' activities that fall under
    one of its eight enumerated exceptions. Minors may participate in any
    activity during curfew hours if they are accompanied by a parent; they
    may run errands at a parent's direction provided that they possess a
    signed note. The ordinance allows minors to undertake employment,
    or attend supervised activities sponsored by school, civic, religious,
    or other public organizations. The ordinance exempts minors who are
    engaged in interstate travel, are on the sidewalk abutting their parents'
    residence, or are involved in an emergency. Finally, the ordinance
    does not affect minors who are "exercising First Amendment rights
    protected by the United States Constitution, such as the free exercise
    of religion, freedom of speech and the right of assembly." Id. § 17-
    7(b)(8).
    The ordinance sets forth a scheme of warnings and penalties for
    minors who violate it. For a first violation, a minor receives a verbal
    warning, followed by a written warning to the minor and the minor's
    parents. For subsequent violations, the minor is charged with a Class
    4 misdemeanor. The ordinance also makes it unlawful for certain
    other individuals, including parents, knowingly to encourage a minor
    3
    to violate the ordinance. The full text of the ordinance is included as
    an appendix to the opinion.
    Plaintiffs are five minors under age seventeen who are subject to
    the ordinance, one eighteen-year-old, and two parents of minor chil-
    dren. The minors allege that, with their parents' permission, they
    occasionally wish to engage in lawful activities which the curfew will
    not permit. These activities include attending late movies; getting a
    "bite to eat"; playing in a band; socializing with older siblings; and
    attending concerts in Richmond, which would bring them back
    through Charlottesville during curfew hours. The eighteen-year-old
    plaintiff alleges that he has been deprived of opportunities to associate
    with his younger friends by the ordinance. The parent plaintiffs allege
    that the ordinance interferes with their decisions on which activities,
    at what times, are appropriate for their children.
    Plaintiffs brought this action for declaratory and injunctive relief,
    alleging that the ordinance violates their rights under the First, Fourth,
    Fifth and Fourteenth Amendments. At trial, plaintiffs dismissed their
    Fourth Amendment claims. Following trial, by order dated May 20,
    1997, the district court rejected plaintiffs' remaining claims and
    denied their motion for a permanent injunction. Plaintiffs now appeal.
    II.
    Initially we must consider the level of scrutiny appropriate to this
    case. Plaintiffs contend that the ordinance infringes minors' constitu-
    tional liberties and therefore should be subject to strict scrutiny. It is
    true that "[a] child, merely on account of his minority, is not beyond
    the protection of the Constitution." Bellotti v. Baird, 
    443 U.S. 622
    ,
    633 (1979) (plurality opinion) (Bellotti II). Minors enjoy some rights
    under the First and Fourteenth Amendments before they attain adult-
    hood. See, e.g., Planned Parenthood of Cent. Missouri v. Danforth,
    
    428 U.S. 52
    , 74 (1976); Tinker v. Des Moines Indep. Community Sch.
    Dist., 
    393 U.S. 503
    , 506 (1969). At the same time, the Supreme Court
    has made abundantly clear that children's rights are not coextensive
    with those of adults. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser,
    
    478 U.S. 675
    , 682 (1986); Bellotti II, 
    443 U.S. at 634
    ; Ginsberg v.
    New York, 
    390 U.S. 629
    , 638 (1968); Prince v. Massachusetts, 
    321 U.S. 158
    , 168 (1944). "Traditionally at common law, and still today,
    4
    unemancipated minors lack some of the most fundamental rights of
    self-determination -- including even the right of liberty in its narrow
    sense, i.e., the right to come and go at will." Vernonia Sch. Dist. 47J
    v. Acton, 
    515 U.S. 646
    , 654 (1995).
    In recognition of these customary limitations, "[t]he state's author-
    ity over children's activities is broader than over like actions of
    adults." Prince, 
    321 U.S. at 168
    . State laws do not permit children to
    drive a car before they reach a certain age. E.g., 
    Va. Code Ann. § 46.2-334
    . Compulsory attendance laws require children to attend
    school. E.g., 
    id.
     § 22.1-254; see also Prince, 
    321 U.S. at 166
    . Labor
    laws limit the opportunities of children to engage in gainful employ-
    ment. E.g., 
    Va. Code Ann. § 40.1-78
    ; see also Prince, 
    321 U.S. at 166
    . These types of laws reflect the state's "general interest in youth's
    well being." Id.; see also City of Dallas v. Stanglin, 
    490 U.S. 19
    , 27
    & n.4 (1989); Bykofsky v. Borough of Middletown , 
    401 F. Supp. 1242
    ,
    1256-57 (M.D. Pa. 1975), aff'd mem., 
    535 F.2d 1245
     (3d Cir. 1976).
    In light of the case law, two things seem clear. First, children do
    possess at least qualified rights, so an ordinance which restricts their
    liberty to the extent that this one does should be subject to more than
    rational basis review. Second, because children do not possess the
    same rights as adults, the ordinance should be subject to less than the
    strictest level of scrutiny. See Carey v. Population Servs. Int'l, 
    431 U.S. 678
    , 693 n.15 (1977) (plurality opinion) (when minors are
    involved the level of scrutiny "is apparently less rigorous than the
    `compelling state interest' test applied to restrictions on the privacy
    rights of adults"); Danforth, 
    428 U.S. at 75
    . We thus believe interme-
    diate scrutiny to be the most appropriate level of review and must
    determine whether the ordinance is "substantially related" to "impor-
    tant" governmental interests. See United States v. Virginia, 
    518 U.S. 515
    , 533 (1996) (quoting Mississippi University for Women v. Hogan,
    
    458 U.S. 718
    , 724 (1982); Wengler v. Druggists Mutual Ins. Co., 
    446 U.S. 142
    , 150 (1980)). We also conclude, however, that the ordinance
    survives constitutional attack under either a substantial or a compel-
    ling state interest standard. The narrow means chosen by the City in
    the ordinance serve strong and indeed compelling public needs.
    5
    III.
    A.
    The text of the Charlottesville curfew ordinance identifies three
    legislative purposes: (1) to reduce juvenile violence and crime within
    the city; (2) to protect juveniles themselves from being swept up in
    unlawful drug activities and from becoming prey to older perpetrators
    of crime; and (3) to strengthen parental responsibility for children.
    These enumerated purposes represent important and compelling gov-
    ernmental interests.
    In Schall v. Martin the Supreme Court recognized that "[t]he `legit-
    imate and compelling state interest' in protecting the community from
    crime cannot be doubted." 
    467 U.S. 253
    , 264 (1984) (quoting DeVeau
    v. Braisted, 
    363 U.S. 144
    , 155 (1960)). Indeed it constitutes "a
    weighty social objective." Brown v. Texas, 
    443 U.S. 47
    , 52 (1979). If
    government cannot ensure the safety of its citizens, it has failed them
    in the most fundamental sense. Schall further confirms that "this inter-
    est persists undiluted in the juvenile context," as the social costs of
    crime are high no matter what the age of the perpetrator. 
    467 U.S. at 264-65
    .
    The City contends that its curfew ordinance was passed to combat
    the marked growth in the rate of juvenile crime both nationwide and
    within Virginia. During the preliminary injunction hearing Dr. Wil-
    liam Ruefle, a criminologist expert in juvenile curfews, testified that
    these state and national growth trends were reflected in Charlottes-
    ville. In fact, the City produced evidence of a twenty-five percent
    increase in the delinquency caseload of Charlottesville's Juvenile and
    Domestic Relations Court between 1991 and 1996. Given the pro-
    jected increase in the nation's juvenile population between 1995 and
    2005, the problem of juvenile crime was unlikely to abate.
    In addition, the City has documented two troubling features of the
    juvenile crime phenomenon. First, the City's evidence on nationwide
    trends indicated a high rate of recidivism among juveniles and a cor-
    relation between juvenile delinquency and adult criminal activity.
    Thus reducing juvenile crime was a pressing first step in reducing the
    overall impact of crime on the community. Second, Charlottesville's
    6
    City Council was concerned about the marked increase in the violence
    associated with juvenile crime. As the City's expert Dr. Ruefle stated
    in an affidavit submitted to the district court,"[j]uveniles in Virginia
    now commit serious property crimes at twice the rate of those 18
    years of age and older, and since 1990, they also commit serious vio-
    lent crimes at a higher rate than adults." In light of this evidence,
    Charlottesville's first stated purpose is undeniably compelling.
    Likewise, the City's strong interest in fostering the welfare of chil-
    dren and protecting the youngest members of society from harm is
    well-established. See, e.g., Santosky v. Kramer, 
    455 U.S. 745
    , 766
    (1982); Ginsberg, 
    390 U.S. at 640
    ; Prince, 
    321 U.S. at 166-67
    . Courts
    have recognized "the peculiar vulnerability of children," Bellotti II,
    443 U.S. at 634, and the Supreme Court long ago observed that
    "streets afford dangers for [children] not affecting adults." Prince, 
    321 U.S. at 169
    . Those dangers have not disappeared; they simply have
    assumed a different and more insidious form today. Each unsuspect-
    ing child risks becoming another victim of the assaults, violent
    crimes, and drug wars that plague America's cities. Given the realities
    of urban life, it is not surprising that courts have acknowledged the
    special vulnerability of children to the dangers of the streets. Nunez
    v. San Diego, 
    114 F.3d 935
    , 947 (9th Cir. 1997); In Re Appeal in
    Maricopa County, Juvenile Action No. JT9065297, 
    887 P.2d 599
    , 606
    (Ariz. Ct. App. 1994) (Maricopa County); In Re J.M., 
    768 P.2d 219
    ,
    223 (Colo. 1989) (en banc); see also Bykofsky , 
    401 F. Supp. at 1257
    .
    Charlottesville, unfortunately, has not escaped these troubling reali-
    ties. Two experienced City police officers confirmed to the district
    court that the children they observe on the streets after midnight are
    at special risk of harm.
    Charlottesville's third purpose -- strengthening parental responsi-
    bility for children -- is also a significant interest. The City shares
    with parents and guardians a responsibility to protect children. Prince,
    
    321 U.S. at 165-66
    ; Pierce v. Society of Sisters , 
    268 U.S. 510
    , 535
    (1925). State authority complements parental supervision, and "the
    guiding role of parents in the upbringing of their children justifies
    limitations on the freedoms of minors." Bellotti II, 443 U.S. at 637.
    The Supreme Court has acknowledged "the special interest of the
    State" in encouraging minors to seek parental advice in making
    important decisions. Id. at 639. And the Court has confirmed that the
    7
    state is appropriately concerned with the integrity of the family unit.
    Trimble v. Gordon, 
    430 U.S. 762
    , 769 (1977). Therefore, like the
    City's two preceding interests in reducing the incidence of juvenile
    crime and juvenile victimization, the City's third aim constitutes an
    important governmental purpose.
    B.
    Conceding for the sake of argument that the curfew's stated ends
    are sufficiently compelling, plaintiffs train their attack on the means
    by which the ordinance seeks to achieve its goals.
    We agree with plaintiffs that the curfew must be shown to be a
    meaningful step towards solving a real, not fanciful problem. As the
    Supreme Court has said in the First Amendment context, the govern-
    ment "must do more than simply `posit the existence of the disease
    sought to be cured.' It must demonstrate that the recited harms are
    real, not merely conjectural, and that the regulation will in fact allevi-
    ate these harms in a direct and material way." Turner Broad. Sys., Inc.
    v. FCC, 
    512 U.S. 622
    , 664 (1994) (citations omitted). This standard,
    however, has never required scientific or statistical "proof" of the wis-
    dom of the legislature's chosen course. Cf. Ginsberg, 
    390 U.S. at
    642-
    43 ("We do not demand of legislatures `scientifically certain criteria
    of legislation.'") (quoting Noble State Bank v. Haskell, 
    219 U.S. 104
    ,
    110 (1911)). The Supreme Court has recognized that"[i]t is unrealis-
    tic to expect either members of the judiciary or state officials to be
    well versed in the rigors of experimental or statistical technique. But
    this merely illustrates that proving broad sociological propositions by
    statistics is a dubious business." Craig v. Boren, 
    429 U.S. 190
    , 204
    (1976). This uncertain nature of remedial legislation is no reason for
    courts to fashion their own cures or to scuttle those the legislature has
    provided. In fact, "[f]ederal courts have always been reluctant to
    question the potential effectiveness of legislative remedies designed
    to address societal problems." Qutb v. Strauss, 
    11 F.3d 488
    , 493 n.7
    (5th Cir. 1993).
    Charlottesville was constitutionally justified in believing that its
    curfew would materially assist its first stated interest -- that of reduc-
    ing juvenile violence and crime. The City Council acted on the basis
    of information from many sources, including records from Charlottes-
    8
    ville's police department, a survey of public opinion, news reports,
    data from the United States Department of Justice, national crime
    reports, and police reports from other localities. On the basis of such
    evidence, elected bodies are entitled to conclude that keeping uns-
    upervised juveniles off the streets late at night will make for a safer
    community. The same streets may have a more volatile and less
    wholesome character at night than during the day. Alone on the
    streets at night children face a series of dangerous and potentially life-
    shaping decisions. Drug dealers may lure them to use narcotics or aid
    in their sale. Gangs may pressure them into membership or participa-
    tion in violence. "[D]uring the formative years of childhood and ado-
    lescence, minors often lack the experience, perspective, and judgment
    to recognize and avoid choices that could be detrimental to them."
    Bellotti II, 443 U.S. at 635; see also Nunez , 
    114 F.3d at 947
    ;
    Maricopa County, 
    887 P.2d at 606-07
    ; In Re J.M., 768 P.2d at 223.
    Those who succumb to these criminal influences at an early age may
    persist in their criminal conduct as adults. Whether we as judges sub-
    scribe to these theories is beside the point. Those elected officials
    with their finger on the pulse of their home community clearly did.
    In attempting to reduce through its curfew the opportunities for chil-
    dren to come into contact with criminal influences, the City was
    directly advancing its first objective of reducing juvenile violence and
    crime.
    Plaintiffs contend that the exclusion of seventeen-year-olds from
    the curfew is a fatal flaw in the ordinance. They argue that this group
    is responsible for one-third of all crimes committed by juveniles
    nationwide and that excluding seventeen-year-olds from the curfew
    thus renders the ordinance impermissibly underinclusive. However,
    the City's evidence documents a serious problem of crime among
    younger juveniles. In Charlottesville in 1995 eighty percent of juve-
    nile arrests for the most serious crimes were of children aged ten to
    sixteen, and in 1996 eighty-five percent of such crimes were commit-
    ted by this group. Furthermore, the City's decision to exclude
    seventeen-year-olds from coverage under the curfew is a legislative
    judgment that we are loath to second-guess. "[I]t is not the function
    of a court `to hypothesize independently on the desirability or feasi-
    bility of any possible alternative[s]' to the statutory scheme.. .. .. .
    `These matters of practical judgment and empirical calculation are for
    [the State].'" Lalli v. Lalli, 
    439 U.S. 259
    , 274 (1978) (quoting
    9
    Matthews v. Lucas, 
    427 U.S. 495
    , 515 (1976)) (alterations in origi-
    nal). In exercising its legislative judgment, the City was forced to bal-
    ance the law enforcement benefit of subjecting seventeen-year-olds to
    the curfew against the greater law enforcement burden of doing so.
    Weighing benefits and burdens is what legislatures are about.
    Plaintiffs also dispute the effectiveness of the curfew in reducing
    juvenile crime. They say that the real problem of juvenile crime is not
    at night, but in the after school hours. Plaintiffs make much of a
    report entitled Juvenile Offenders and Victims: 1996 Update on
    Violence, Office of Juvenile Justice and Delinquency Prevention, U.S.
    Dep't of Justice 27 (1996), which asserts that only seventeen percent
    of violent juvenile crime occurs during typical curfew hours, while
    twenty-two percent happens between 2:00 p.m. and 6:00 p.m. on
    school days. The City responds that the lower rate of late-night crime
    may reflect the fact that several of the South Carolina cities in the
    study actually had late-night curfews in effect. And with respect to
    conditions in Charlottesville before the curfew, City police officers
    and Charlottesville's Commonwealth's Attorney confirmed that the
    most serious crimes committed by juveniles occurred during curfew
    hours. Further, the City Council considered evidence that juvenile
    offenses occurring in Charlottesville between 11:00 p.m. and 6:00
    a.m. increased by thirty-eight percent during 1995 and a further ten
    percent during 1996. Thus the City had reason to believe that, in both
    volume and severity, nighttime juvenile crime was a serious, growing
    problem in Charlottesville.
    Charlottesville's City Council concluded that a nighttime curfew
    might help curb this rising trend of juvenile crime. In making this
    decision, the City relied on the experience of cities like Lexington,
    Kentucky, where eight months of enforcing a nighttime juvenile cur-
    few effected an almost ten percent decrease in juvenile arrests for the
    serious crimes of homicide, assault, robbery, rape, burglary, larceny,
    auto theft and arson. And the district court heard testimony that a cur-
    few has the greatest chance of reducing juvenile crime in a smaller
    city like Charlottesville, where juvenile crime, though a serious prob-
    lem, has not yet become totally uncontrollable. Fundamentally, how-
    ever, this dispute about the desirability or ultimate efficacy of a
    curfew is a political debate, not a judicial one. If local communities
    conclude that curfews are ineffective in reducing crime, too onerous
    10
    to enforce, or too intrusive on the liberties of minors, then they are
    free to discontinue them. Yet local legislative bodies are entitled to
    draw their conclusions in light of experience with a curfew's opera-
    tion, and not have their efforts at reducing juvenile violence shut
    down by a court before they even have a chance to make a difference.
    Plaintiffs also dispute that the curfew will contribute much, if any-
    thing, to protecting juveniles from crime, the City's second objective.
    They deny that the streets are a particularly dangerous place for chil-
    dren at night, contending that the majority of crimes committed
    against children are committed by family members or acquaintances
    rather than by strangers on the street. The fact that children may be
    at risk at home or during the day means only that the curfew will not,
    unfortunately, protect juveniles from all crime. It does nothing to
    undermine the City's evidence that children remain at risk of crime
    in the street -- in fact, the City points out that in 1991 thirty-three
    percent of the violent crimes reported by juvenile victims nationwide
    occurred on the street. Juvenile Offenders & Victims: A National
    Report, Office of Juvenile Justice and Delinquency Prevention, U.S.
    Dep't of Justice 22 (1995). The Constitution certainly does not put
    legislatures to the choice of solving the entirety of a social problem
    or no part of it at all. Plyler v. Doe, 
    457 U.S. 202
    , 216 (1982).
    Further, the evidence presented by the City identified several spe-
    cial dangers of the nighttime hours: a vigorous street-level drug trade
    that flourishes during the late evening and early morning hours and
    that routinely uses children to facilitate drug transactions, thereby
    exposing them to a high degree of danger; the difficulties of appre-
    hending perpetrators of crime at night, as criminal activity is less visi-
    ble and less subject to monitoring by concerned neighbors and
    passers-by; and the increased degree of violence and seriousness of
    the crimes that are committed at night. The record documents that in
    Charlottesville in 1996 aggravated assaults were almost one and one-
    half times as likely to occur during curfew hours as non-curfew hours,
    robberies more than twice as likely to occur at these times, forcible
    rapes more than three times as likely during curfew hours, and inci-
    dents of drunk driving more than five times more likely to occur dur-
    ing curfew hours, trends that continued into the first months of 1997.
    By keeping children off the streets a few hours each night, the curfew
    11
    reduces the exposure of children to these well-known, and well-
    documented harms.
    Finally, plaintiffs dispute the City's claim that the curfew will sup-
    port the parental role in child-rearing, its third stated goal. They focus
    exclusively on the testimony of the parent plaintiffs, who clearly do
    not appreciate the curfew and do not welcome it as an enhancement
    of their authority. The City was entitled to believe, however, that a
    nocturnal curfew would promote parental involvement in a child's
    upbringing. A curfew aids the efforts of parents who desire to protect
    their children from the perils of the street but are unable to control the
    nocturnal behavior of those children. And a curfew encourages par-
    ents who ignore their children's nighttime activities to take a more
    active role in their children's lives. See Bykofsky, 
    401 F. Supp. at 1255
    ; In Re J.M., 768 P.2d at 223. Finally, the curfew assists the
    efforts of parents who prefer their children to spend time on their
    studies rather than on the streets. City law enforcement officers
    related anecdotal evidence that some parents actively welcome the
    support of the authorities in establishing baselines for their children
    and in enforcing reasonable limits on the freedom of their children to
    wander the streets in the middle of the night. And the City Council
    acted on the basis of surveys and testimony at public hearings reflect-
    ing widespread approval of the curfew and the support it offers to par-
    ents' efforts to discipline their children.
    C.
    The Charlottesville curfew is not only "substantially related" to its
    stated purposes. The limited scope of the curfew and its numerous
    exceptions would satisfy even the strict scrutiny requirement of nar-
    row tailoring. See Bernal v. Fainter, 
    467 U.S. 216
    , 219 (1984) (nar-
    row tailoring requires that the government use the least restrictive
    means to advance its goals). Plaintiffs urge, however, that we follow
    the lead of the Ninth Circuit, which held that San Diego's curfew
    ordinance failed strict scrutiny review because the exceptions to the
    ordinance were not sufficiently detailed and comprehensive to make
    the curfew the least restrictive means of serving San Diego's compel-
    ling ends. Nunez, 
    114 F.3d at 948-49
    .
    The San Diego curfew applied to all minors under the age of eigh-
    teen, began at 10:00 p.m., and extended until "daylight immediately
    12
    following." 
    Id. at 938
    . It contained four exceptions: (1) when a minor
    is accompanied by a parent or other qualified adult; (2) when a minor
    is on an emergency errand for his parent; (3) when a minor is return-
    ing from a school-sponsored activity; and (4) when a minor is
    engaged in employment. See San Diego, Cal., Municipal Code Art.
    8, § 58.01, quoted in Nunez, 
    114 F.3d at 938-39
    .
    By contrast, Charlottesville's curfew applies only to minors less
    than seventeen years of age, does not begin until midnight on week-
    days and 1:00 a.m. on weekends, lifts at 5:00 a.m. each morning, and
    contains no fewer than eight detailed exceptions. Under Charlottes-
    ville's curfew, minors are allowed, inter alia , to remain on the side-
    walk directly abutting their residences; to attend supervised activities
    sponsored by school, religious, public, civic or other similar organiza-
    tions; to run errands for their parents; to undertake interstate travel;
    and to engage freely in any activity protected by the First Amend-
    ment.
    The Charlottesville ordinance carefully mirrors the Dallas curfew
    ordinance that the Fifth Circuit found to satisfy strict scrutiny in Qutb,
    
    11 F.3d at 490
    . Like the Charlottesville ordinance, the Dallas curfew
    covered fewer hours than San Diego's and affected minors under the
    age of seventeen, not eighteen. In addition to exceptions for employ-
    ment and emergencies and when a minor is in the presence of a parent
    or guardian, the curfew at issue in Qutb included a broad exception
    for sponsored activities, a First Amendment exception, an exception
    for being outside on the sidewalk adjacent to the minor's home, and
    an exception for interstate travel. 
    Id.
     Charlottesville's curfew is in fact
    even narrower in scope than the Dallas ordinance, as it affects fewer
    hours each night -- the Dallas curfew extended from 11:00 p.m. until
    6:00 a.m. on weeknights and from 12:00 midnight to 6:00 a.m. on
    weekends, one hour more each day than the Charlottesville ordinance.
    This curfew, with its narrow scope and comprehensive list of excep-
    tions, represents the least restrictive means to advance Charlottes-
    ville's compelling interests. Thus, it would survive even strict
    scrutiny if that were the appropriate standard of review.
    IV.
    We next address plaintiffs' claims that the Charlottesville ordi-
    nance violates the constitutional rights of parents. Plaintiffs assert that
    13
    parents have a constitutionally protected right to direct their chil-
    dren's upbringing without undue government interference. They urge
    that this right includes decisions whether to allow their children to
    engage in activities after the curfew takes effect. The ordinance inter-
    feres with this right, they conclude, by prohibiting children's activi-
    ties that have the parents' full approval but do not fall under one of
    the ordinance's eight exceptions.
    Not every state restriction of a child's freedom derivatively
    abridges the fundamental rights of parents. The Supreme Court has
    rejected the view that parents possess an unqualified right to raise
    children that trumps any government regulation of their children's
    conduct. In Prince, the Court recognized"that the state has a wide
    range of power for limiting parental freedom and authority in things
    affecting the child's welfare." 
    321 U.S. at 167
    ; see also Jehovah's
    Witnesses in Wash. v. King County Hosp. Unit No. 1 (Harbor-View),
    
    390 U.S. 598
     (1968) (per curiam), aff'g 
    278 F. Supp. 488
     (W.D.
    Wash. 1967); Bykofsky, 
    401 F. Supp. at 1262
    . Furthermore, were we
    to accept plaintiffs' argument, future litigants could simply artfully
    plead violations of parental rights to avoid the Supreme Court's deter-
    mination that children do not possess all the freedoms of adults. Argu-
    ments based on minors' rights to engage in particular conduct would
    be routinely recast as arguments based on parents' rights to allow
    their children to engage in precisely the same conduct.
    We are mindful that the Supreme Court has suggested in other con-
    texts that parents may possess a fundamental right against undue,
    adverse interference by the state. See Wisconsin v. Yoder, 
    406 U.S. 205
    , 231 (1972) (state compulsory high school attendance law inter-
    fered with "traditional concepts of parental control over the religious
    upbringing and education of their minor children"); Stanley v. Illinois,
    
    405 U.S. 645
    , 651 (1972) (state presumption that unmarried father
    was unfit parent undermined "the interest of a parent in the compan-
    ionship, care, custody, and management" of child); Meyer v.
    Nebraska, 
    262 U.S. 390
    , 400 (1923) (state prohibition against teach-
    ing of foreign languages frustrated "the natural duty of the parent to
    give his children education suitable to their station in life"). We do
    not believe, however, that cases involving a parent's custodial rights
    or authority to direct a child's education support plaintiffs' claim. The
    Charlottesville ordinance, prohibiting young children from remaining
    14
    unaccompanied on the streets late at night, simply does not implicate
    the kinds of intimate family decisions considered in the above cases.
    Finally, several of the exceptions to the Charlottesville curfew do
    accommodate the rights of parents. See Qutb, 
    11 F.3d at 496
    . These
    include the exception for minors accompanied by a parent and the
    exception for minors running an errand at the direction of a parent.
    In general, the same reasons that lead us to reject the constitutional
    challenges of the minor plaintiffs even under strict scrutiny apply to
    the claims of the parent plaintiffs. Cf. Bykofsky, 
    401 F. Supp. at 1264
    .
    The limited curtailment of juvenile liberty in the ordinance violates
    neither a minor's nor a parent's rights.
    V.
    Finally, we consider plaintiffs' claims that various exceptions to
    the ordinance are unconstitutionally vague. A law is not void for
    vagueness so long as it "(1) establishes `minimal guidelines to govern
    law enforcement,' and (2) gives reasonable notice of the proscribed
    conduct." Elliott v. Administrator, Animal and Plant Health Inspec-
    tion Serv., 
    990 F.2d 140
    , 145 (4th Cir. 1993) (citation omitted). In
    statutes imposing criminal penalties, "the standard of certainty is
    higher." Kolender v. Lawson, 
    461 U.S. 352
    , 359 n.8 (1983). Yet clar-
    ity even in a criminal code can be a receding mirage. Thus the vague-
    ness doctrine cannot "convert into a constitutional dilemma the
    practical difficulties in drawing criminal statutes both general enough
    to take into account a variety of human conduct and sufficiently spe-
    cific to provide fair warning that certain kinds of conduct are prohib-
    ited." Colten v. Kentucky, 
    407 U.S. 104
    , 110 (1972).
    Striking down ordinances (or exceptions to the same) as facially
    void for vagueness is a disfavored judicial exercise. Nullification of
    a law in the abstract involves a far more aggressive use of judicial
    power than striking down a discrete and particularized application of
    it. Of course there will be hard cases under any law. And of course
    all the particular applications of any general standard will not be
    immediately apparent. That is no reason, however, for courts to scrap
    altogether the efforts of the legislative branch. It is preferable for
    courts to demonstrate restraint by entertaining challenges to applica-
    tions of a law as those challenges arise.
    15
    The Charlottesville ordinance provides an exception for those
    minors who are "exercising First Amendment rights protected by the
    United States Constitution, such as the free exercise of religion, free-
    dom of speech and the right of assembly." Charlottesville, Va., Code
    § 17-7(b)(8). Plaintiffs insist that this exception accords standardless
    discretion to law enforcement officers to decide whether or not the
    exception applies. According to plaintiffs, it also forces citizens to
    learn a complex body of constitutional law in order to comprehend its
    scope.
    We decline to punish the City for its laudable effort to respect the
    First Amendment. See CISPES (Committee in Solidarity with the Peo-
    ple of El Salvador) v. FBI, 
    770 F.2d 468
    , 474 (5th Cir. 1985). A broad
    exception from the curfew for such activities fortifies, rather than
    weakens, First Amendment values. Plaintiffs basically attempt to
    place city councils between a rock and a hard place. If councils draft
    an ordinance with exceptions, those exceptions are subject to a vague-
    ness challenge. If they neglect to provide exceptions, then the ordi-
    nance is attacked for not adequately protecting First Amendment
    freedoms. It hardly seems fitting, however, for courts to chastise
    elected bodies for protecting expressive activity. The Charlottesville
    ordinance is constitutionally stronger with that protection than with-
    out.*
    The First Amendment exception also does not accord unfettered
    discretion to law enforcement officials. Every criminal law, of course,
    reposes some discretion in those who must enforce it. The mere possi-
    bility that such discretion might be abused hardly entitles courts to
    strike a law down. Police Chief Wolford's deposition, relied on by
    plaintiffs, does not indicate an actual risk of arbitrary enforcement. In
    response to a question from plaintiffs' counsel about whether a late
    _________________________________________________________________
    *The dissenting opinion suggests that the First Amendment exception
    would be improved if it included a scienter element. See post at 52. A
    scienter requirement might serve a beneficial narrowing function if § 17-
    7(b)(8) imposed criminal liability. The provision, however, provides an
    exception from liability for persons who otherwise would be in violation
    of the curfew. It is not clear why the dissent would want to narrow this
    safe haven by requiring minors to satisfy an additional state-of-mind
    requirement.
    16
    night conversation about politics between two fifteen-year-olds in a
    coffee house fell within the exception for First Amendment activities,
    he stated: "You're indoors, it's a public location, I, I think technically
    under the ordinance it may be a violation. I doubt whether we would
    deal with it." Such hedged deposition testimony about a speculative
    hypothetical does not demonstrate that police will enforce the curfew
    arbitrarily. See Village of Hoffman Estates v. Flipside, Hoffman
    Estates, Inc., 
    455 U.S. 489
    , 503 (1982).
    The First Amendment exception provides adequate notice to citi-
    zens. It is perfectly clear that core First Amendment activities such as
    political protest and religious worship after midnight would be pro-
    tected. It is equally clear that rollerblading would not. Between these
    poles may lie marginal cases, which can be taken as they come. 
    Id.
    at 503 n.21.
    The ordinance also provides an exception for activities sponsored
    by civic organizations. Plaintiffs argue that the Supreme Court found
    the term "civic" to be vague when it struck down an ordinance that
    required permits for door-to-door solicitation but exempted several
    groups, including "Borough Civic Groups and Organizations." Hynes
    v. Mayor of Oradell, 
    425 U.S. 610
    , 621 (1976). We do not read Hynes
    to stand for the broad proposition that any use of the term civic is per
    se vague. The Court in Hynes found several of the terms used to
    describe the exempted groups, including "Borough Civic Groups and
    Organizations," to be unclear. 
    Id.
     Here the language of the exception
    is clearer and includes activities sponsored by school and religious
    organizations in addition to civic organizations. Considered in this
    context, we believe that the City intended to give civic its ordinary
    meaning: "concerned with or contributory to general welfare and the
    betterment of life for the citizenry of a community or enhancement of
    its facilities." Webster's Third New International Dictionary
    (Unabridged) 412 (1961). We decline to find this everyday use of the
    term civic to suffer an ambiguity of constitutional magnitude. See
    Grayned v. City of Rockford, 
    408 U.S. 104
    , 110 (1972).
    The ordinance also creates an exception in cases where a minor is
    involved in an emergency. Without citation to authority, plaintiffs
    pose a variety of hypothetical situations in which this exception may
    or may not apply. For example, they wonder whether the exception
    17
    would include the need to go to a store to purchase cough medicine
    or a thermometer. Once again, the existence of questions at the mar-
    gins does not justify striking down the exception altogether. A brief
    review of the exception illuminates many situations to which it
    plainly applies. The ordinance specifically defines emergency as "re-
    fer[ring] to unforeseen circumstances, or the status or condition
    resulting therefrom, requiring immediate action to safeguard life, limb
    or property." Charlottesville, Va. Code § 17-7(a). It further details
    that "[t]he term includes, but is not limited to, fires, natural disasters,
    automobile accidents, or other similar circumstances." Id. While
    "[t]here is little doubt that imagination can conjure up hypothetical
    cases" to test the meaning of emergency, these speculative musings
    do not render this term unconstitutionally vague. American Communi-
    cations Ass'n v. Douds, 
    339 U.S. 382
    , 412 (1950).
    Plaintiffs' vagueness claims threaten to make the drafting of a cur-
    few ordinance an impossible task. The practical exceptions to the
    City's curfew shall not provide the cause of its demise.
    VI.
    Our dissenting colleague insists that the Charlottesville ordinance
    must satisfy strict scrutiny, that it is not narrowly tailored, and that it
    is void for vagueness. Under the dissent's stringent application of
    these standards, however, no curfew ever would pass constitutional
    muster. In particular, no ordinance would survive the dissent's ver-
    sion of strict scrutiny, which disregards the Supreme Court's recogni-
    tion that such inquiry should not be "strict in theory, but fatal in fact."
    See Adarand Constructors, Inc. v. Pena, 
    515 U.S. 200
    , 237 (1995)
    (internal quotation marks omitted). Any locality in the nation that
    chose to enact a curfew would ultimately see it picked to death in the
    courts. A brief look at the dissent's analysis indicates why this is so.
    To begin with, the dissent downplays the interests of the commu-
    nity, namely Charlottesville's goals of promoting the well-being of its
    youngest citizens and of fostering parental responsibility. The dis-
    sent's suggestion that these interests are compelling only when the
    state proceeds in a manner "supportive of the parental role," post at
    41, is not consistent with the prevalence of legislative measures (such
    as age limitations on drinking and on driving) that may, on occasion,
    18
    frustrate the desires of individual parents. Moreover, by granting a cit-
    izen's veto to every parent in the community, the dissent would con-
    vert the compelling interest requirement into a rule of unanimity. This
    high a constitutional bar is antithetical to the values of democratic
    innovation.
    The same disablement of democratic authority is evident in the dis-
    sent's strict reading of means. The dissent does agree that Charlottes-
    ville's interest in reducing juvenile crime is compelling, but then
    subjects the curfew to an impossibly narrow tailoring standard. Tell-
    ingly, the dissent fails to point to less restrictive means that the City
    might have employed. Forbidding preventive measures such as cur-
    fews propels localities to the harshest of alternatives -- waiting for
    juveniles actually to commit criminal offenses and then apprehending,
    prosecuting, and punishing them. Neither minors nor the City would
    gain from this result.
    Finally, no ordinance could ever meet the precision envisioned by
    the dissent's "strict vagueness standard." Post at 49. The dissent
    argues that the labyrinthine nature of First Amendment doctrine
    requires a curfew exception drawn in labyrinthine detail. Forcing city
    councils to pursue such an elusive goal would prevent them from ever
    passing an ordinance. The vagueness doctrine's basic notice principle
    does not impose such an impediment.
    The Charlottesville curfew serves not only to head off crimes
    before they occur, but also to protect a particularly vulnerable popula-
    tion from being lured into participating in such activity. Contrary to
    the dissent's protestation, we do not hold that every such curfew ordi-
    nance would pass constitutional muster. The means adopted by a
    municipality must bear a substantial relationship to significant gov-
    ernmental interests; the restrictiveness of those means remains the
    subject of judicial review. As the district court noted, however, the
    curfew law in Charlottesville is "among the most modest and lenient
    of the myriad curfew laws implemented nationwide." Charlottes-
    ville's curfew, compared to those in other cities, is indeed a mild reg-
    ulation: it covers a limited age group during only a few hours of the
    night. Its various exceptions enable minors to participate in necessary
    or worthwhile activities during this time. We hold that Charlottes-
    19
    ville's juvenile curfew ordinance comfortably satisfies constitutional
    standards.
    Accordingly, we affirm the judgment of the district court. We do
    so in the belief that communities possess constitutional latitude in
    devising solutions to the persistent problem of juvenile crime.
    AFFIRMED
    Appendix
    AN ORDINANCE
    TO AMEND AND REORDAIN SECTION 17-7 OF CHAPTER 17
    OF THE CHARLOTTESVILLE CITY CODE, 1990,
    AS AMENDED, RELATING TO A GENERAL CURFEW
    FOR MINORS
    BE IT ORDAINED by the Council of the City of Charlottesville,
    Virginia that:
    1. Section 17-7 of the Code of the City of Charlottesville, 1990,
    as amended, is hereby amended and reordained, as follows:
    Section 17-7 Curfew for Minors.
    The purpose of this section is to: (i) promote the general welfare
    and protect the general public through the reduction of juvenile vio-
    lence and crime within the City; (ii) promote the safety and well-
    being of the City's youngest citizens, persons under the age of seven-
    teen (17), whose inexperience renders them particularly vulnerable to
    becoming participants in unlawful activities, particularly unlawful
    drug activities, and to being victimized by older perpetrators of crime;
    and (iii) foster and strengthen parental responsibility for children.
    (a) Definitions.
    As used within this section 17-7, the following words and phrases
    shall have the meanings ascribed to them below:
    20
    "Curfew hours" refers to the hours of 12:01 a.m. through 5:00 a.m.
    on Monday through Friday, and 1:00 a.m. through 5:00 a.m. on Satur-
    day and Sunday.
    "Emergency" refers to unforeseen circumstances, or the status or
    condition resulting therefrom, requiring immediate action to safe-
    guard life, limb or property. The term includes, but is not limited to,
    fires, natural disasters, automobile accidents, or other similar circum-
    stances.
    "Establishment" refers to any privately-owned place of business
    within the City operated for a profit, to which the public is invited,
    including, but not limited to any place of amusement or entertain-
    ment. With respect to such Establishment, the term"Operator" shall
    mean any person, and any firm, association, partnership (and the
    members or partners thereof) and/or any corporation (and the officers
    thereof) conducting or managing that Establishment.
    "Minor" refers to any person under seventeen (17) years of age
    who has not been emancipated by court order entered pursuant to Sec-
    tion 16.1-333 of the Code of Virginia, 1950, as amended.
    "Officer" refers to a police or other law enforcement officer
    charged with the duty of enforcing the laws of the Commonwealth of
    Virginia and/or the ordinances of the City of Charlottesville.
    "Parent" refers to:
    (1) a person who is a minor's biological or adoptive par-
    ent and who has legal custody of a minor (including either
    parent, if custody is shared under a court order or agree-
    ment);
    (2) a person who is the biological or adoptive parent with
    whom a minor regularly resides;
    (3) a person judicially appointed as a legal guardian of
    the minor; and/or
    21
    (4) a person eighteen (18) years of age or older standing
    in loco parentis (as indicated by the authorization of an indi-
    vidual listed in part(s) (1), (2) or (3) of this definition,
    above, for the person to assume the care or physical custody
    of the child, or as indicated by any other circumstances).
    "Person" refers to an individual, not to any association, corpora-
    tion, or any other legal entity.
    "Public Place" refers to any place to which the public or a substan-
    tial group of the public has access, including, but not limited to:
    streets, highways, roads, sidewalks, alleys, avenues, parks, and/or the
    common areas of schools, hospitals, apartment houses, office build-
    ings, transportation facilities and shops.
    "Remain" refers to the following actions:
    (1) to linger or stay at or upon a place; and/or
    (2) to fail to leave a place when requested to do so by an
    officer or by the owner, operator or other person in control
    of that place.
    "Temporary care facility" refers to a non-locked, non-restrictive
    shelter at which minors may wait, under visual supervision, to be
    retrieved by a parent. No minors waiting in such facility shall be
    handcuffed and/or secured (by handcuffs or otherwise) to any station-
    ary object.
    (b) It shall be unlawful for a minor, during curfew hours, to remain
    in or upon any Public Place within the City, to remain in any motor
    vehicle operating or parked therein or thereon, or to remain in or upon
    the premises of any Establishment within the City, unless:
    (1) the minor is accompanied by a parent; or
    (2) the minor is involved in an emergency; or
    (3) the minor is engaged in an employment activity, or is
    going to or returning home from such activity, without
    detour or stop; or
    22
    (4) the minor is on the sidewalk directly abutting a place
    where he or she resides with a parent; or
    (5) the minor is attending an activity sponsored by a
    school, religious, or civic organization, by a public organi-
    zation or agency, or by another similar organization or
    entity, which activity is supervised by adults, and/or the
    minor is going to or returning from such an activity without
    detour or stop; or
    (6) the minor is on an errand at the direction of a parent,
    and the minor has in his or her possession a writing signed
    by the parent containing the following information: the
    name, signature, address and telephone number of the parent
    authorizing the errand, the telephone number where the par-
    ent may be reached during the errand, the name of the
    minor, and a brief description of the errand, the minor's des-
    tination(s) and the hours the minor is authorized to be
    engaged in the errand; or
    (7) the minor is involved in interstate travel through, or
    beginning or terminating in, the City of Charlottesville; or
    (8) the minor is exercising First Amendment rights pro-
    tected by the United States Constitution, such as the free
    exercise of religion, freedom of speech and the right of
    assembly.
    (c) It shall be unlawful for a minor's parent to knowingly permit,
    allow or encourage such minor to violate 17-7(b).
    (d) It shall be unlawful for a person who is the owner or operator
    of any motor vehicle to knowingly permit, allow or encourage a viola-
    tion of 17-7(b).
    (e) It shall be unlawful for the Operator of any Establishment, or
    for any person who is an employee thereof, to knowingly permit,
    allow or encourage a minor to remain upon the premises of the Estab-
    lishment during curfew hours. It shall be a defense to prosecution
    23
    under this subsection that the Operator or employee of an Establish-
    ment promptly notified the police department that a minor was pres-
    ent at the Establishment after curfew hours and refused to leave.
    (f) It shall be unlawful for any person (including any minor) to give
    a false name, address, or telephone number to any officer investigat-
    ing a possible violation of this section 17-7.
    (g) Enforcement.
    (1) Minors. Before taking any enforcement action hereun-
    der, an officer shall make an immediate investigation for the
    purpose of ascertaining whether or not the presence of a
    minor in a public place, motor vehicle and/or Establishment
    within the City during Curfew hours is in violation of 17-
    7(b).
    (A) If such investigation reveals that the pres-
    ence of such minor is in violation of 17-7(b), then:
    (1) if the minor has not previously been
    issued a warning for any such violation, then the
    officer shall issue a verbal warning to the minor,
    which shall be followed by a written warning
    mailed by the police department to the minor
    and his or her parent(s), or
    (2) if the minor has previously been issued a
    warning for any such violation, then the officer
    shall charge the minor with a violation of this
    ordinance and shall issue a summons requiring
    the minor to appear in court (Ref. Va. Code
    § 16.1-260(H)(1)). And
    (B) As soon as practicable, the officer shall:
    (1) release the minor to his or her parent(s);
    or
    24
    (2) place the minor in a temporary care facil-
    ity for a period not to exceed the remainder of
    the curfew hours, so that his or her parent(s)
    may retrieve the minor; or
    (3) if a minor refuses to give an officer his or
    her name and address, refuses to give the name
    and address of his or her parent(s), or if no par-
    ent can be located prior to the end of the appli-
    cable curfew hours, or if located, no parent
    appears to accept custody of the minor, the
    minor may be taken to a nonsecure crisis center
    or juvenile shelter and/or may be taken to a
    judge or intake officer of the juvenile court to be
    dealt with in the manner and pursuant to such
    procedures as required by law. (Ref. Va. Code
    § 16.1-260(H)(1); § 16.1-278.6; #8E8E # 16.1-
    241(A)(1)).
    (2) Others. If an investigation by an officer reveals that
    a person has violated 17-7(c), (d) and/or (e), and if the per-
    son has not previously been issued a warning with respect
    to any such violation, an officer shall issue a verbal warning
    to the person, which shall be followed by a written warning
    mailed by the police department to the person; however, if
    any such warning has previously been issued to that person
    then the officer shall charge the person with a violation and
    shall issue a summons directing the person to appear in
    court.
    (h) Each violation of this section 17-7 shall constitute a Class 4
    Misdemeanor.
    2. Within one year after the effective date of March 1, 1997 of
    this ordinance, the City Manager shall review this ordinance and
    report and make recommendations to the City Council concerning the
    effectiveness of and the continuing need for the ordinance. The City
    Manager's report shall specifically include the following information:
    (a) the practicality of enforcing the ordinance and any problems with
    enforcement identified by the Police Department; (b) the impact and
    25
    cost of the ordinance; (c) other data and information which the Police
    Department believes to be relevant in assessing the effectiveness of
    the curfew ordinance; and (d) information from citizens regarding
    whether the ordinance has been administered and enforced fairly,
    including information regarding the age, gender and race of those
    charged or detained under the ordinance.
    3. This ordinance shall be effective on March 1, 1997, at 12:01
    a.m.
    Approved by Council                 /s/ Jeanne Cox
    December 16, 1996                   Clerk of City Council
    MICHAEL, Circuit Judge, dissenting:
    Today, the majority relegates kids to second-class citizenship by
    upholding Charlottesville's nighttime curfew for minors. Forbidding
    children to go out at night affects their fundamental rights, and such
    a restriction can be valid only if it withstands strict scrutiny. The
    Charlottesville curfew ordinance fails the test because it sweeps too
    broadly and usurps rather than supports parental authority over child
    rearing. The ordinance has another constitutional defect as well.
    Although it is a crime to violate the ordinance, the crime is only
    vaguely defined. The curfew does not apply when minors are "exer-
    cising First Amendment rights." This exception is unconstitutionally
    vague, leaving children, their parents, and the police to guess whether
    particular conduct is punishable as a crime. I respectfully dissent.
    The majority attempts to brush this dissent aside by claiming that
    under my approach "no curfew ever would pass constitutional mus-
    ter," ante at 18. I can as easily say that under the majority's approach
    no curfew would ever fail constitutional muster. I'm afraid that my
    claim will be proven true. As long as the majority's standard is the
    law, a city council can pass a juvenile curfew as a routine measure
    because the justification is so easy to articulate. This should not stand
    under the Constitution. Children make up a quarter of our population,
    and their rights must not be ignored. A city council cannot order such
    a large segment of the community to stay at home for thirty-three
    hours of every week unless its curfew satisfies strict scrutiny. Subject-
    26
    ing Charlottesville's ordinance to this test does not subvert the "dem-
    ocratic authority" of the City Council, see ante at 18-19. On the
    contrary, the Council's authority must be exercised within constitu-
    tional bounds. The Council cannot, in the name of majority rule, take
    away constitutional rights of a minority, in this case all children under
    seventeen.
    I.
    Charlottesville's curfew targets all unemancipated persons under
    seventeen and applies between the hours of 12:01 a.m. and 5:00 a.m.
    on week nights and 1:00 a.m. and 5:00 a.m. on Friday and Saturday
    nights (Saturday and Sunday mornings). See Charlottesville, Va.,
    Code § 17-7(a), (b) (hereinafter City Code). The ordinance makes it
    unlawful for these minors to "remain" in public (including private
    property open to the public) during curfew hours unless one of the
    curfew's eight exceptions are met. See id. One of these exceptions
    allows a minor to remain in public when "the minor is exercising First
    Amendment rights protected by the United States Constitution, such
    as the free exercise of religion, freedom of speech and the right of
    assembly." Id. § 17-7(b)(8). A minor is also exempted from the cur-
    few if he has written documentation that he is running an "errand" as
    directed by his parent and this document meets nine statutory criteria.
    See id. § 17-7(b)(6).1 Minors who violate the curfew are subject to
    criminal punishment, and so are parents who "knowingly permit,
    allow or encourage" their children to defy the curfew. See id. § 17-
    7(c).
    On March 10, 1997, Daniel Schleifer and four other minors, two
    adult parents of these minors, and an eighteen-year-old adult brought
    suit against the City of Charlottesville seeking a declaratory judgment
    that the curfew ordinance is unconstitutional. In district court the
    _________________________________________________________________
    1 The written document must contain the following information: (1) the
    minor's name; (2) the authorizing parent's name, (3) signature, (4)
    address, and (5) telephone number; (6) the telephone number where this
    parent may be reached during the pendency of the errand; (7) a "brief"
    description of the errand; (8) the minor's destination or destinations; and
    (9) "the hours the minor is authorized to be engaged in the errand." See
    City Code § 17-7(b)(6).
    27
    minor plaintiffs argued their case as a Fourteenth Amendment equal
    protection violation that implicates their fundamental rights, including
    First Amendment and due process rights and the right to intrastate
    movement. The parent plaintiffs argued that the curfew's restrictions
    impermissibly burdened their due process right to exercise parental
    discretion and control over the rearing of their children by making the
    exercise of this discretion and control illegal. Finally, all plaintiffs
    challenged the statute as being void for vagueness under the Due Pro-
    cess Clause.2 The district court ruled for the City on these claims after
    a trial on the merits. I would reverse on the grounds that the curfew
    violates the Equal Protection Clause and is void for vagueness.
    II.
    Because the curfew criminalizes conduct of persons under the age
    of seventeen, the City's use of this age-based classification is subject
    to the limitations of the Fourteenth Amendment's Equal Protection
    Clause. Generally, laws making age-based classifications are subject
    to rational basis review, see Gregory v. Ashcroft, 
    501 U.S. 452
    , 470
    (1991); Massachusetts Bd. of Retirement v. Murgia, 
    427 U.S. 307
    ,
    313-14 (1976), and thus are upheld if there is a rational relationship
    that ties the use of the classification to a legitimate governmental pur-
    pose, see Heller v. Doe, 
    509 U.S. 312
    , 319-21 (1993). However, when
    an age-based classification affects fundamental rights, a court must
    review the classification with "the most exacting scrutiny." See Clark
    v. Jeter, 
    486 U.S. 456
    , 461 (1988) (unanimous decision); see also
    Austin v. Michigan Chamber of Commerce, 
    494 U.S. 652
    , 666 (1990).
    The Charlottesville curfew ordinance does implicate fundamental
    rights. Cf. Kolender v. Lawson, 
    461 U.S. 352
    , 358 (1983) (loitering
    statute implicates First Amendment liberties and"constitutional right
    to freedom of movement"); Nunez v. City of San Diego, 
    114 F.3d 935
    ,
    944-45 (9th Cir. 1997) (holding that curfew infringed minors' funda-
    mental rights). Normally, this would require the City to demonstrate
    that the ordinance satisfies strict scrutiny. However, because this case
    involves the fundamental rights of minors, and not those of adults, the
    _________________________________________________________________
    2 Like the majority, I read the plaintiffs' equal protection and due pro-
    cess claims as arising under the Fourteenth Amendment, rather than the
    Fifth Amendment as alleged in their complaint.
    28
    majority concludes that equal protection requires only intermediate
    scrutiny. See ante at 4-5. I disagree. Like the Fifth and Ninth Circuits,
    I would hold that the Equal Protection Clause subjects to strict scru-
    tiny all governmental classifications that impact fundamental consti-
    tutional rights. See Nunez, 
    114 F.3d at 945-46
    ; Qutb v. Strauss, 
    11 F.3d 488
    , 492 & n.6 (5th Cir. 1993). Under this standard the Char-
    lottesville curfew is unconstitutional.
    A.
    Some mention of the unique status of children in our society is nec-
    essary to set the stage for the explanation of why strict scrutiny is nec-
    essary. The Supreme Court has long recognized that "`[c]hildren have
    a very special place in life which the law should reflect.'" Bellotti v.
    Baird, 
    443 U.S. 622
    , 633 (1979) (Bellotti II ) (plurality opinion).
    Accordingly, the Bellotti II plurality identified certain factors that the
    Court has used to justify situations where "the constitutional rights of
    children cannot be equated with those of adults." 
    Id. at 634
     (identify-
    ing the factors as "the peculiar vulnerability of children; their inability
    to make critical decisions in an informed, mature manner; and the
    importance of the parental role in child rearing."). These factors
    reflect the view that "[t]he unique role in our society of the family . . .
    requires that constitutional principles be applied with sensitivity and
    flexibility to the special needs of parents and children." See 
    id.
     at 633-
    34. This focus on the family and the parent-child relationship is cen-
    tral in the Court's decisions and must be examined to understand
    when there is justification for concluding that a minor's constitutional
    rights are not coextensive with those of an adult.
    The Supreme Court has consistently reflected the traditional West-
    ern concept of the family as a "unit with broad parental authority over
    minor children." See Parham v. J.R., 
    442 U.S. 584
    , 602 (1979).
    Indeed, the Court's "`constitutional interpretation has consistently
    recognized [that] parents' claim to authority in their own household
    to direct the rearing of their children is basic in the structure of our
    society.'" Bellotti II, 443 U.S. at 638 (quoting Ginsberg v. New York,
    
    390 U.S. 629
    , 639 (1968)). This authority is undoubtedly broad.
    When parental control comes into play, "unemancipated minors lack
    some of the most fundamental rights of self-determination -- includ-
    ing even the right of liberty in its narrow sense, i.e., the right to come
    29
    and go at will." Vernonia Sch. Dist. 47J v. Acton, 
    515 U.S. 646
    , 654
    (1995).
    However, a parent's broad authority does not generally carry over
    to the state. "[O]ur constitutional system long ago rejected any notion
    that a child is `the mere creature of the State' and, on the contrary,
    asserted that parents generally `have the right, coupled with the high
    duty, to recognize and prepare [their children] for additional obliga-
    tions.'" Parham, 
    442 U.S. at 602
     (quoting Pierce v. Society of Sisters,
    
    268 U.S. 510
    , 535 (1925)); see also Bellotti II , 443 U.S. at 637;
    Wisconsin v. Yoder, 
    406 U.S. 205
    , 232 (1972) ("This primary role of
    the parents in the upbringing of their children is now established
    beyond debate as an enduring American tradition."). The Court has
    repeatedly said that it is "`cardinal with us that the custody, care and
    nurture of the child reside first in the parents, whose primary function
    and freedom include preparation for obligations the state can neither
    supply nor hinder.'" See Bellotti II, 443 U.S. at 638 (alteration in
    original) (quoting Prince v. Massachusetts, 
    321 U.S. 158
    , 166
    (1944)). This broad recognition of the parents' right to control the
    upbringing of their children and of constitutional deference to paren-
    tal authority is linked to the parents' duty to raise and protect their
    children. See Lehr v. Robertson, 
    463 U.S. 248
    , 257-58 (1983); Meyer
    v. Nebraska, 
    262 U.S. 390
    , 400 (1923). This deference to parents rests
    on the strong presumptions that "natural bonds of affection lead par-
    ents to act in the best interests of their children" and that "parents pos-
    sess what a child lacks in maturity, experience, and capacity for
    judgment required for making life's difficult decisions." See Parham,
    
    442 U.S. at 602, 603
    ; see also Bellotti II, 443 U.S. at 637; Yoder, 
    406 U.S. at 232
    .
    Only in limited instances is the state able to assert a parent's broad
    power to control the activities of minors. For example, when the state
    acts as the legal guardian for a child, it will assume much, if not all,
    of a parent's traditional prerogatives. Similarly, the teachers and
    administrators of a public school will act "in loco parentis" while chil-
    dren are in their physical custody because parents"`delegate part of
    [their] authority'" to the school by placing their children under its
    instruction. See Vernonia, 
    515 U.S. at 655
     (quoting 1 W. Blackstone,
    Commentaries on the Laws of England 441 (1769)); Bethel Sch. Dist.
    30
    No. 403 v. Fraser, 
    478 U.S. 675
    , 682 (1986); 
    id. at 688
     (Brennan, J.,
    concurring in the judgment).3
    In a similar way, the state (as parens patriae) may occasionally dis-
    place the parents' primary role in child rearing in order to protect a
    child's welfare. Thus, the state may trump parental discretion in delin-
    quency proceedings (because parental control has already faltered),
    see Schall v. Martin, 
    467 U.S. 253
    , 265 (1984); In re Gault, 
    387 U.S. 1
    , 17 (1967), or in situations where a child's "physical or mental
    health is jeopardized," see Parham, 
    442 U.S. at 603
    ; Yoder, 
    406 U.S. at 233-34
    . In these circumstances, the strong presumption that parents
    are able and willing to act in the best interests of their children may
    be rebutted. See Parham, 
    442 U.S. at 602
    . The state's power to dis-
    place parental discretion is limited, however, and must be justified on
    a case-by-case basis.
    That some parents "may at times be acting against the inter-
    ests of their children" . . . creates a basis for caution, but is
    hardly a reason to discard wholesale those pages of human
    experience that teach that parents generally do act in the
    child's best interests. The statist notion that governmental
    power should supersede parental authority in all cases
    _________________________________________________________________
    3 The majority overlooks Vernonia's real thrust by quoting it to suggest
    that a minor's constitutional rights with respect to the state are subject
    to "customary limitations," ante at 5, that"includ[e] even the right of lib-
    erty in its narrow sense, i.e., the right to come and go at will," 
    id.
     (quot-
    ing Vernonia, 
    515 U.S. at 654
    ). Had the majority quoted the very next
    line in Vernonia, it would be obvious that the case makes clear that
    minors lack some of the most fundamental rights of self-determination
    with respect to their parents, not the state. See 515 U.S. at 654 ("They
    are subject, even as to their physical freedom, to the control of their par-
    ents or guardians."). Vernonia repeatedly emphasized that a minor's
    rights "vis-a-vis the State may depend on the individual's legal relation-
    ship with the State" and that "central" to the Court's decision was the fact
    that the children claiming a constitutional privacy right had "been com-
    mitted to the temporary custody of the State as schoolmaster." See id. at
    654; see also id. at 655, 656, 662, 665; cf. Nunez, 
    114 F.3d at 944-45
    (rejecting as "out of context" the same quotation the majority uses from
    Vernonia).
    31
    because some parents abuse and neglect children is repug-
    nant to American tradition.
    Id. at 602-03 (citations omitted). Indeed,"[s]imply because the deci-
    sion of a parent is not agreeable to a child or because it involves risks
    does not automatically transfer the power to make that decision from
    the parents to some agency or officer of the state." Id. at 603 (empha-
    sis added). Thus, except in special circumstances, the state normally
    must defer to the exercise of a broad degree of parental discretion.
    It is also clear that while the state does have an independent interest
    in the welfare of children, this interest may be superseded by the par-
    ents' right to exercise broad discretion in raising their children. See,
    e.g., Yoder, 
    406 U.S. at 229-30
    ; Pierce, 
    268 U.S. at 534-35
    ; Meyer,
    
    262 U.S. at 400
    . Consequently, the rights of minors in relation to the
    state must be analyzed to consider not only the interests of the minor
    and the state but also the interests of parents. Cf. Parham, 
    442 U.S. at 600
     (minor's "interest is inextricably linked with the parents' inter-
    est in and obligation for the welfare and health of the child"). Thus,
    the analysis of a minor's rights is complicated by the addition of this
    third party (a parent) who can bolster either the state's claim of
    authority or the minor's assertion of rights. Cf. Yoder, 
    406 U.S. at 231
    (recognizing that "competing interests of parents, children, and the
    State" requires additional analysis).4
    Although the Court's language in Prince v. Massachusetts, 
    321 U.S. 158
     (1944), "taken at its broadest sweep" would lend support to
    the majority's expansive view of state power, Prince has limited
    application beyond its facts. See Yoder, 
    406 U.S. at 229
    . Prince
    involved a challenge to a conviction under a child labor law that made
    it criminal for parents to allow boys under the age of twelve and girls
    _________________________________________________________________
    4 Recently, in Reno v. ACLU , 
    117 S. Ct. 2329
    , 2348 (1997), the Court
    recognized that it is "clear that the strength of the government's interest
    in protecting minors is not equally strong" in all applications of the Com-
    munications Decency Act. Specifically, the Court indicated that the gov-
    ernment's interest in protecting minors from indecent material would be
    greatly diminished where "a parent allow[s] her 17-year-old to use the
    family computer to obtain information on the Internet that she, in her
    parental judgment, deems appropriate." See 
    id.
     (emphasis added).
    32
    younger than eighteen to sell newspapers and similar items. See
    Prince, 
    321 U.S. at 160-61
    . The Court sustained the conviction of
    Mrs. Prince for taking her ward (and niece), a nine-year-old girl, with
    her to assist in selling religious literature during the evening hours.
    See 
    id. at 161-62
    ; 
    id. at 171
     (Murphy, J., dissenting); see also
    Ginsberg, 
    390 U.S. at 638-39
    . The Court ruled that the state's inter-
    ests in protecting the nine-year-old from psychological and physical
    harms that might result from Prince's activities were sufficient to jus-
    tify the conviction. See 
    321 U.S. at 169-70
    . The Court was careful to
    state, however, that its decision did "not extend beyond the facts the
    case presents." See 
    id. at 171
    . Accordingly, the Court has since lim-
    ited Prince's application to situations where there is a "`substantial
    threat'" of harm to the "physical or mental health of the child or to
    the public safety, peace, order, or welfare." See Yoder, 
    406 U.S. at 230
    . In light of Yoder and the facts of Prince, I read Prince to allow
    a state to override parental discretion when the exercise of this discre-
    tion creates a substantial threat to the health and safety of children.
    In assessing this threat, Prince suggests that very young children are
    particularly vulnerable to harm.
    This discussion underscores the Supreme Court's recognition of the
    special status of children and the predominance of the family unit. In
    particular, it underscores the Court's deference to the traditional
    authority of parents over the activities of their children. With this
    background, I now turn to the proper standard of scrutiny that must
    be applied in this case.
    B.
    The minors' equal protection challenge in this case must be ana-
    lyzed under strict scrutiny. This conclusion flows from the basic ques-
    tion the majority ignores. Why are the federal constitutional rights of
    persons who are defined as minors under state law different from
    those of adults? The answer is that a minor's constitutional rights are
    basically the same as those of adults, but in certain situations there
    may be "significant state interest[s] . . . that [are] not present in the
    case of an adult" that will support a broader authority to regulate
    minors. See Planned Parenthood v. Danforth, 
    428 U.S. 52
    , 75 (1976).5
    _________________________________________________________________
    5 There are limited differences imbedded in our Constitution. For
    instance, the Twenty-Sixth Amendment guarantees the right to vote only
    to those eighteen and older. See U.S. Const. amend. XXVI.
    33
    When these interests justify regulation, they do so not because a
    minor's constitutional rights are always inferior to those of an adult
    but rather because the government's specific interests as regards
    minors are sometimes sufficient to allow a regulation to survive strict
    scrutiny. Accordingly, I would hold that the "fundamental rights" of
    minors are no less fundamental than those of adults and, thus, must
    be protected with the same vigor under a strict scrutiny analysis. See
    Nunez, 
    114 F.3d at 945
    .
    1.
    This conclusion is drawn from the Supreme Court's general
    approach to analyzing the rights of minors. The Court makes it clear
    that "[m]inors, as well as adults, are protected by the Constitution and
    possess constitutional rights." See Danforth , 
    428 U.S. at 74
    ; see also
    Tinker v. Des Moines Indep. Community Sch. Dist., 
    393 U.S. 503
    , 511
    (1969) ("[s]tudents . . . are `persons' under our Constitution [who] are
    possessed of fundamental rights which the State must respect"); In re
    Gault, 
    387 U.S. 1
    , 13 (1967) ("whatever may be their precise impact,
    neither the Fourteenth Amendment nor the Bill of Rights is for adults
    alone"). Indeed, the simple fact of age minority cannot by itself justify
    a dilution of constitutional protection. See Bellotti v. Baird, 
    443 U.S. 622
    , 633 (1979) (Bellotti II) (four-vote plurality opinion) ("A child,
    merely on account of his minority, is not beyond the protection of the
    Constitution."). Because "[c]onstitutional rights do not mature and
    come into being magically only when one attains the state-defined age
    of majority," Danforth, 
    428 U.S. at 74
     (emphasis added), all persons,
    regardless of age, possess these rights under our system. Cf. Bellotti
    II, 443 U.S. at 635 ("children generally are protected by the same con-
    stitutional guarantees against governmental deprivations as are adults"
    (emphasis added)).
    While minors generally possess the same rights against govern-
    mental deprivations as adults, considerations unique to minors can
    lend more weight to the government's interest in regulating this class.
    See Nunez, 
    114 F.3d at 945
    ; Qutb, 
    11 F.3d 492
     n.6. In Bellotti II a
    four-justice plurality noted that the Supreme Court has used three rea-
    sons to "justify[ ]" treating minors differently from adults under the
    Constitution: "the peculiar vulnerability of children; their inability to
    make critical decisions in an informed, mature manner; and the
    34
    importance of the parental role in child rearing." 443 U.S. at 634. If
    minors are to be accorded constitutional rights unequal to adults by
    reason of a particular regulation, these factors must support the gov-
    ernment's assertion of greater authority. "`It is only upon such a
    premise . . . that a State may deprive children of .. . rights [when a
    similar deprivation] would be constitutionally intolerable for adults.'"
    Bellotti II, 443 U.S. at 635 n.13 (quoting Ginsberg, 
    390 U.S. at 650
    (Stewart, J., concurring in the result)) (emphasis added).
    The principle is illustrated by the Supreme Court's treatment of
    statutes forbidding a minor to obtain an abortion without parental con-
    sent. The Court has steadfastly insisted that such statutes must have
    a judicial bypass procedure. See, e.g., Bellotti II, 443 U.S. at 647-48
    (consent statute); Danforth, 
    428 U.S. at 72-75
     (same). The analysis
    used by the Court in Danforth is particularly instructive. After ruling
    that a spousal consent provision was unconstitutional, the Court
    addressed the statute's parental consent provision, saying that "much
    of what has been said above, with respect to [spousal consent],
    applies with equal force to [parental consent]." 
    428 U.S. at 74
    . The
    Court explained that "[m]inors, as well as adults, are protected by the
    Constitution and possess constitutional rights." 
    Id.
     However, it
    acknowledged that "the State has somewhat broader authority to regu-
    late the activities of children than of adults." See 
    id.
     Consequently, the
    Court explained: "It remains, then, to examine whether there is any
    significant state interest in conditioning an abortion on the consent of
    a parent . . . that is not present in the case of an adult." See 
    id. at 75
    (emphasis added). This analysis demonstrates that the Court did not
    assume that the state always possesses broader authority to regulate
    children. To the contrary, it looked to whether there were significant
    interests specific to minors that justified the law, indicating that the
    law would be unconstitutional if these interests did not provide suffi-
    cient support for broader authority to regulate minors. After examin-
    ing the interests advanced by the state, the Court struck down the
    parental consent law because it lacked "sufficient justification." See
    
    id. at 75
    .
    The Court applied the same reasoning it used in Danforth to its
    subsequent parental consent cases. In Bellotti II the Court constructed
    its judicial bypass requirement to permit the consent undertaking to
    apply only to those minors who could justifiably be treated differently
    35
    from adults. Thus, a bypass procedure must allow a minor to demon-
    strate that either (1) she is mature and informed enough to make the
    abortion decision herself or (2) the abortion is in her best interests.
    See Ohio v. Akron Ctr. for Reprod. Health, 
    497 U.S. 502
    , 511 (1990)
    (Akron II); Bellotti II, 
    443 U.S. 647
    -48. First, the state's justification
    that minors generally are not able "to make critical decisions in an
    informed, mature manner," Bellotti II, 443 U.S. at 634, is lost when
    a minor is adjudged mature and informed. Without the immaturity
    justification, the state has little reason to, and indeed cannot, require
    a parent's consent. Cf. Danforth, 
    428 U.S. at 75
     (parent's interest in
    abortion decision is outweighed by mature minor's privacy right).
    Similarly, Bellotti's final consideration, that greater restrictions may
    be imposed on minors to reinforce the "importance of the parental
    role in child rearing," Bellotti II, 443 U.S. at 634, is premised on the
    presumption that parents will discharge their "responsibility for [their]
    children's well-being." See id. at 638-39. When a minor can demon-
    strate to a court that an abortion is in her best interests, the state's
    interest in involving the parents is reduced so much that the state can
    no longer require a minor to obtain parental consent. Therefore, when
    a minor is mature or an abortion is in her best interests, parental con-
    sent requirements are unconstitutional because the state's interests
    (specific to minors) do not justify a restriction that could not be
    applied to adults.
    The parental consent example demonstrates that the government
    may sometimes, but not always, have interests in protecting minors
    that will allow it to impose special restrictions that narrow a minor's
    constitutional rights. It follows that courts must look at the regulation
    in question to determine if the state has sufficient justification to
    claim that a minor's rights are not the equal of an adult's. Only
    through this process can the state-defined age of majority have any
    significance insofar as constitutional rights are concerned.
    2.
    We know that we must evaluate the special interests that may jus-
    tify a greater degree of governmental authority over minors in the
    context of the specific regulation. Still, the question remains as to
    which level of scrutiny is appropriate in cases involving constitutional
    rights. Logic compels that strict scrutiny apply.
    36
    It is clear from the discussion above that the majority's categorical
    approach is wrong. The majority would apply intermediate scrutiny
    in all cases involving minors, even those in which the government has
    no justification specific to minors for infringing upon their fundamen-
    tal rights. In the latter situation the governmental interest in regulating
    minors under the majority's approach is identical to its interest in reg-
    ulating adults. Yet the rights of minors could still be treated differ-
    ently because their "fundamental" rights are not protected with strict
    scrutiny review. This has far ranging implications. Legislative bodies
    can pass many laws regulating conduct that would pass intermediate
    scrutiny but fail strict scrutiny. Under the majority's approach, such
    laws could be applied to all minors but could not be applied to any
    adults (whose fundamental rights are protected by strict scrutiny),
    even though the government had no reason to regulate minors any
    more than it did adults. The majority's holding, therefore, allows a
    minor to be deprived of constitutional rights when a similar depriva-
    tion would be constitutionally intolerable for adults, even though the
    state lacks any reason for different treatment. This result cannot be
    justified and essentially creates a second-class citizenship for all per-
    sons under the age of majority. For these persons, federal constitu-
    tional rights will "mature and come into being magically only when
    [they] attain[ ] the state-defined age of majority," Danforth, 
    428 U.S. at 74
    .6
    Moreover, the majority's approach is completely inconsistent with
    the Supreme Court's decisions on parental consent in the abortion
    context. As discussed above, the state cannot constitutionally regulate
    a minor's abortion rights by requiring parental consent unless the reg-
    ulation provides a judicial bypass. The majority's holding, however,
    would allow the state to regulate a minor's abortion rights if the
    _________________________________________________________________
    6 Although I disagree with the details of the approach taken by the dis-
    trict court, its analysis properly focused on the existence or absence of
    interests specific to minors that would justify"accord[ing] the state more
    regulatory latitude in governing children in certain circumstances."
    Schleifer v. City of Charlottesville, 
    963 F. Supp. 534
    , 541 (W.D. Va.
    1997) (preliminary injunction analysis that was adopted in final ruling)
    (emphasis added). Under its approach, only "[w]hen the Bellotti factors
    . . . cut in favor of increased state oversight" will intermediate, rather
    than strict, scrutiny apply. See 
    id. at 541-42
    .
    37
    state's regulation "`is substantially related' to `important' governmen-
    tal interests," ante at 5. Such a result is clearly at odds with the
    Supreme Court's approach, as the state always has an important inter-
    est in regulating abortions. Beginning with Roe v. Wade, 
    410 U.S. 113
    (1973), the Supreme Court has repeatedly recognized the state's "im-
    portant and legitimate interest in protecting the potentiality of human
    life." 
    Id. at 162
    . See also Planned Parenthood v. Casey, 
    505 U.S. 833
    ,
    871 (1992); Harris v. McRae, 
    448 U.S. 297
    , 324-25 (1980). This
    interest by itself would enable state abortion statutes to meet interme-
    diate scrutiny. Therefore, the majority's holding that intermediate
    scrutiny should apply to the regulation of minors simply cannot be
    squared with the Supreme Court's insistence that a state cannot
    require a mature minor to obtain parental consent for an abortion.
    Indeed, if the majority was correct, the state could completely ban
    abortions for women under the age of eighteen. This confirms the fal-
    lacy of applying intermediate scrutiny to cases involving the funda-
    mental rights of minors.
    I would avoid these difficulties by applying strict scrutiny to all
    equal protection challenges involving fundamental rights, regardless
    of whether minors or adults are involved. Under this approach, minors
    must be treated the same as adults whenever the government lacks
    interests specific to minors to support more restrictive regulatory
    authority over them. Cf. Bellotti II, 
    443 U.S. at
    635 n.13; Danforth,
    
    428 U.S. at 74-75
    . However, when circumstances trigger governmen-
    tal interests that are particular to minors, these interests, when coupled
    with the government's other interests, can make the government's
    claim for greater restrictions on minors much stronger. If these inter-
    ests taken as a whole are compelling, the government's regulation (if
    narrowly tailored) will survive strict scrutiny with respect to minors,
    even though it would fail the test in the case of adults. See Nunez, 
    114 F.3d at 945
     ("the Bellotti framework enables courts to determine
    whether the state has a compelling interest justifying greater restric-
    tions on minors than on adults"); Qutb, 
    11 F.3d at
    492 n.6 (same).
    This approach therefore provides a principled approach for deciding
    when children may be treated differently from adults for constitu-
    tional purposes.7
    _________________________________________________________________
    7 The majority relies on the plurality opinion in Carey v. Population
    Services International, 
    431 U.S. 678
    , 691-99 (1977), to support its argu-
    38
    The Fifth and Ninth Circuits adopt this approach and analyze
    minors' equal protection challenges with strict scrutiny when funda-
    mental rights are implicated. See Nunez, 
    114 F.3d at 945-46
    ; Qutb, 
    11 F.3d at
    492 & n.6; cf. Hutchins v. District of Columbia, 
    144 F.3d 798
    ,
    805-10 (D.C. Cir. 1998) (opinion of Rogers, J.) (intermediate scru-
    tiny); 
    id. at 825-27
     (Tatel, J., concurring in the judgment) (strict scru-
    tiny); 
    id. at 828
     (Silberman, J., dissenting) (finding that no
    fundamental right was affected by curfew and therefore applying
    rational basis review to age-based equal protection challenge).8 I
    would join these circuits and hold that the Equal Protection Clause
    subjects all governmental classifications impacting on the fundamen-
    tal constitutional rights of minors to strict scrutiny.
    C.
    The Charlottesville curfew ordinance cannot withstand strict scru-
    tiny and should be struck down. The Equal Protection Clause protects
    our constitutional rights by requiring that the government clear a high
    hurdle before regulating in the realm of fundamental rights. Under
    strict scrutiny review, "statutory classifications impinging on [a fun-
    _________________________________________________________________
    ment that the Charlottesville curfew should be subjected to less than
    strict scrutiny. See ante at 5. Carey is a slender reed for this proposition.
    First, Carey's plurality opinion was decided before Bellotti II, and later
    cases have followed the reasoning of Bellotti II . Second, Carey itself is
    best read as a recognition that the state's unique and significant interests
    in regulating children will make it easier to justify greater restrictions on
    minors than on adults. See Carey, 
    431 U.S. at 693
     (plurality opinion).
    8 Reno v. Flores, 
    507 U.S. 292
    , 301-05 (1993), indicates that strict scru-
    tiny should apply when the fundamental rights of minors are involved.
    In Flores a class of minors challenged an INS regulation that requires
    juvenile aliens to be placed in institutional group care facilities during
    the pendency of deportation proceedings if a guardian or adult relative
    is not available to take custody. The Court recognized that strict scrutiny
    applies "when fundamental rights are involved," see 
    id. at 302, 305
    , but
    it rejected the minors' due process claim because it found that no funda-
    mental right existed under the circumstances of the case. See 
    id. at 305
    ;
    cf. 
    id. at 304
     (stating that "the child's fundamental rights must not be
    impaired" by INS). The approach adopted by the Fifth and Ninth Circuits
    is therefore consistent with Flores' implication that strict scrutiny applies
    when a minor's fundamental rights are in the balance.
    39
    damental] right must be narrowly tailored to serve a compelling gov-
    ernmental interest." Austin v. Michigan Chamber of Commerce, 
    494 U.S. 652
    , 666 (1990); see also Memorial Hosp. v. Maricopa County,
    
    415 U.S. 250
    , 269 (1974). The Charlottesville ordinance fails the
    strict scrutiny test, notwithstanding its stated (and worthy) objectives
    of (1) reducing juvenile crime, (2) promoting the safety and well-
    being of juveniles, and (3) fostering and strengthening parental
    responsibility.
    1.
    I quite agree with the majority that protecting the community from
    serious crime is a compelling governmental interest. See ante at 6.
    The problem is that the Charlottesville curfew is not narrowly tailored
    to forward this goal. "Statutes affecting constitutional rights must be
    drawn with `precision,' and must be `tailored' to serve their legitimate
    objectives. . . . [I]f there are other, reasonable ways to achieve those
    goals with a lesser burden on constitutionally protected activity, [the
    government] may not choose the way of greater interference. If it acts
    at all, it must choose `less drastic means.'" Dunn v. Blumstein, 
    405 U.S. 330
    , 343 (1972) (quoting Shelton v. Tucker , 
    364 U.S. 479
    , 488
    (1960)).
    By restricting the freedom of minors during curfew hours, the ordi-
    nance treats all minors under the age of seventeen as a threat to soci-
    ety in order to protect the community from juvenile crime. This broad
    restriction is not narrowly tailored to meet its objective of crime pre-
    vention. The ordinance treats all minors the same even though an
    exceedingly small percentage commit crimes. The Equal Protection
    Clause forbids such a crude grouping when fundamental rights are at
    stake, and limiting the curfew's hours and providing exceptions does
    not diminish this shortcoming.
    This is not to say that emergency curfews that are broadly applica-
    ble and limited in duration are unconstitutional. Our circuit has previ-
    ously, and properly, ruled that such emergency measures are a proper
    exercise of the state's police power. See, e.g. , United States v. Chalk,
    
    441 F.2d 1277
    , 1280-83 (4th Cir. 1971). Here, however, we have a
    curfew with no sunset provision -- a curfew that sweeps in a vast
    class, all minors under seventeen, most of whom are law-abiding. The
    40
    Equal Protection Clause does not permit such a broad segment of
    society to be kept off the streets every night with the simple general-
    ization, "We want to prevent crime." Narrow tailoring requires some-
    thing less drastic.
    2.
    The City's second objective of promoting the safety and well-being
    of juveniles also falls short under strict scrutiny. This interest is not
    compelling in this case because the curfew displaces parental author-
    ity. Indeed, the majority says only that the City has a "strong" interest
    in protecting the youngest members of society from harm. See ante
    at 6-7. "Strong" interests are not sufficient to satisfy strict scrutiny.
    Only compelling interests suffice.
    The City's stated interest in protecting minors under the age of sev-
    enteen is not compelling here because the curfew was not designed
    to be supportive of the parental role. Bellotti II recognized that "re-
    strictions on minors, especially those supportive of the parental role,
    may be important to the child's chances for . . . full growth and matu-
    rity" and therefore can justify an increased governmental authority to
    regulate the protected activities of minors. See 443 U.S. at 338-39
    (emphasis added). This authority can be present when the governmen-
    tal interest in regulation complements the traditional authority of the
    parent. By supporting the exercise of parental discretion, the state
    aligns its regulatory power with the interests of parents who have
    broad discretion to control the activities of their children. The com-
    bined interests of parents and the state therefore strengthen the justifi-
    cation for governmental regulation. Ginsberg, for example, prohibited
    the direct sale of pornographic magazines to minors in order to
    strengthen parents' control over their children's access to such mate-
    rial. See 390 U.S. at 631, 639. The Court was careful to note, how-
    ever, that the government did not displace parental authority: "the
    prohibition against sales to minors does not bar parents who so desire
    from purchasing the magazines for their children." See id. at 639; see
    also Reno v. ACLU, 
    117 S. Ct. at 2346-48
    . Laws like the one in
    Ginsberg may thus be justified because they defer to parental author-
    ity and decisionmaking.
    41
    The Charlottesville ordinance, however, paternalistically displaces
    the exercise of parental discretion by making it illegal for parents to
    allow their children to move about independently at night. Yet parents
    are better able to assess their children's maturity and capacity for
    judgment than a city council. Parents may legitimately decide that the
    best way to raise their children is to permit them to be out on their
    own after midnight on occasion. See Nunez, 
    114 F.3d at 952
    . In other
    words, parents may legitimately conclude that the risk of granting
    children some independence is small compared to the benefits result-
    ing from the gradual development of maturity and judgment that is
    needed in preparation for a responsible adult life. This exercise of
    parental discretion is impossible under the ordinance.9
    Indeed, the ordinance was purposefully designed to displace paren-
    tal discretion with the will of the City Council. On the day the curfew
    was enacted, the Council's agenda said the following about the cur-
    few's purpose: "parental responsibility for the whereabouts of their
    children is the norm and where that does not exist, then the legal sanc-
    tion should enforce such responsibility. Further, well communicated
    curfew ordinances . . . impose a community-wide standard on parents
    who are unable or unwilling to set such limits." (Emphasis added).
    Rather than supporting the parental role, this curfew supersedes it. It
    reflects the "statist notion that governmental power should supersede
    parental authority in all cases because some parents" fail to exercise
    control over their children. See Parham, 
    442 U.S. at 603
    . This gov-
    ernmental paternalism is "repugnant to American tradition." 
    Id.
     Con-
    sequently, because the curfew attempts to achieve its stated purpose
    of promoting the safety and well-being of minors by displacing paren-
    tal authority over the upbringing of children, the curfew does not
    serve a compelling governmental interest.
    _________________________________________________________________
    9 The curfew's sixth exception allows a minor to run an "errand" for his
    parent if he carries a signed document meeting nine statutory criteria. See
    City Code § 17-7(b)(6). This rigid exception, with its bureaucratic
    demand for detail, does not afford parents the discretion to allow their
    children to operate with any degree of independence. See supra note 1
    (listing nine requirements).
    42
    3.
    It follows that the ordinance's third stated purpose of fostering and
    strengthening parental responsibility also falls short. Ginsberg and
    Bellotti II recognize that laws "supportive of the parental role,"
    Bellotti II, 443 U.S. at 638 (emphasis added), may justify some limi-
    tation on the constitutional rights of minors. However, when laws dis-
    place the primacy of parental discretion by imposing community-wide
    norms, the traditional authority of parents over child rearing is no lon-
    ger available to support any limitation on the rights of minors. The
    curfew's attempt to foster and strengthen parental responsibility by
    displacing parental authority does not support a compelling state
    interest.
    For these reasons, I would hold that the Charlottesville curfew fails
    to satisfy strict scrutiny and thus violates the Equal Protection Clause.
    III.
    Even if I could conclude that Charlottesville's curfew passed strict
    scrutiny, I would hold that the ordinance as adopted is void for vague-
    ness under the Due Process Clause. More specifically, I would hold
    that the ordinance's First Amendment "exception" is impermissibly
    vague.
    A.
    The vagueness doctrine of the Due Process Clause"requires that a
    penal statute define the criminal offense with sufficient definiteness
    that ordinary people can understand what conduct is prohibited and
    in a manner that does not encourage arbitrary and discriminatory
    enforcement." Kolender v. Lawson, 
    461 U.S. 352
    , 357 (1983).
    Although due process requires that a statute satisfy both requirements,
    the second is of special importance: "`a legislature [must] establish
    minimal guidelines to govern law enforcement'" and prevent arbitrary
    enforcement. See 
    id. at 357-58
     (citation omitted). When statutory lan-
    guage lacks sufficient "definiteness or certainty of expression," 
    id. at 357
    , enforcement of the law is left to the purely subjective decisions
    of the police, prosecutors, and juries. See 
    id. at 358
    ; Village of Hoff-
    43
    man Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 498
    (1982) (citing Grayned v. City of Rockford, 
    408 U.S. 104
     (1972)). Our
    Constitution's guarantee of due process of law makes this unaccept-
    able. As the Supreme Court recognized a long time ago,
    "It would certainly be dangerous if the legislature could set
    a net large enough to catch all possible offenders, and leave
    it to the courts to step inside and say who could be rightfully
    detained, and who should be set at large. This would, to
    some extent, substitute the judicial for the legislative depart-
    ment of government."
    Kolender, 
    461 U.S. at
    358 n.7 (quoting United States v. Reese, 
    92 U.S. 214
    , 221 (1875)). In other words, "[w]ell-intentioned prosecutors
    and judicial safeguards do not neutralize the vice of a vague law."
    Baggett v. Bullitt, 
    377 U.S. 360
    , 373 (1964). The law itself must draw
    a sufficiently clear line between the legal and the illegal for both our
    police and our citizens.
    B.
    Vagueness challenges may be brought against a statute "on its
    face" without regard to specific conduct, "as applied" to the plaintiff's
    conduct, or on both grounds. Facial challenges strike at the heart of
    the statute, and, if successful, invalidate any and all application of the
    challenged provision until it is given a construction that sufficiently
    clarifies it. See Steffel v. Thompson, 
    415 U.S. 452
    , 474 (1974); cf.
    Boddie v. Connecticut, 
    401 U.S. 371
    , 379 (1971) (as applied). I there-
    fore agree with the majority that facial invalidity on vagueness
    grounds is strong medicine that is to be administered infrequently. See
    ante at 15. I disagree, however, with the majority's apparent belief
    that courts have discretion to avoid invalidating a facially unconstitu-
    tional statute. Cf. 
    id.
     ("It is preferable for courts to demonstrate
    restraint by entertaining challenges to applications of a law as those
    challenges arise"). Courts rarely invalidate a law for facial vagueness.
    This is not because courts exercise discretionary restraint but because
    few facial challenges satisfy the high burden normally imposed. As
    a general rule, a law is vague on its face "only if [it] is impermissibly
    vague in all of its applications." See Hoffman Estates, 
    455 U.S. at
    495
    & n.7.
    44
    What the majority ignores is the exception to this general rule:
    when "a law reaches `a substantial amount of constitutionally pro-
    tected conduct,'" facial vagueness challenges are"permit[ted]" and a
    plaintiff may attack the law "`as being vague as applied to conduct
    other than his own.'" See Kolender, 
    461 U.S. at
    358 & n.8 (citations
    omitted) (First Amendment rights and freedom of movement affected
    by regulation of loitering and wandering); see also Hoffman Estates,
    
    455 U.S. at 494-95
     (recognizing that general rule applies only to stat-
    utes that "implicate[ ] no constitutionally protected conduct" (empha-
    sis added)); Gooding v. Wilson, 
    405 U.S. 518
    , 521 (1972); Aptheker
    v. Secretary of State, 
    378 U.S. 500
    , 517 (1964) (facial challenge to
    law restricting international travel). This exception is "logically
    related and similar" to the doctrine of substantial overbreadth, see
    Kolender, 
    461 U.S. at
    358 n.8, in that it is necessitated by the chilling
    effect that vague laws can have on the exercise of protected freedoms.
    As the Supreme Court has explained,
    The objectionable quality of vagueness and overbreadth
    does not depend upon absence of fair notice to a criminally
    accused or upon unchanneled delegation of legislative pow-
    ers, but upon the danger of tolerating, in the area of First
    Amendment freedoms, the existence of a penal statute sus-
    ceptible of sweeping and improper application. These free-
    doms are delicate and vulnerable, as well as supremely
    precious in our society. The threat of sanctions may deter
    their exercise almost as potently as the actual application of
    sanctions. Because First Amendment freedoms need breath-
    ing space to survive, government may regulate in the area
    only with narrow specificity.
    NAACP v. Button, 
    371 U.S. 415
    , 432-33 (1963) (citations and foot-
    note omitted); see also Keyishian v. Board of Regents, 
    385 U.S. 589
    ,
    604, 609 (1967) ("The danger of [a] chilling effect upon the exercise
    of vital First Amendment rights must be guarded against by sensitive
    tools which clearly inform [individuals] what is being proscribed.");
    Kolender, 
    461 U.S. at
    358 n.8 (citing Button and Keyishian to support
    exception to general rule). Especially, then, when chilling effects are
    a danger and a "substantial amount" of protected activity is impli-
    cated, facial challenges must be permitted. In other words, we do not
    45
    have to wait for case-by-case judicial review of particular applications
    of the law.
    Because the City's curfew regulates a substantial amount of pro-
    tected activity, I would hold that it is subject to a facial challenge. The
    Supreme Court's decision in Kolender all but mandates this conclu-
    sion. In Kolender the Court held that a California loitering statute was
    unconstitutionally vague on its face. The law made it a crime for per-
    sons who "loiter or wander on the streets" to fail to provide "credible
    and reliable" identification when a peace officer requests it under cir-
    cumstances that would justify a Terry stop. See 
    461 U.S. at 353, 357
    .
    See generally Terry v. Ohio, 
    392 U.S. 1
     (1968), and later cases. The
    Court permitted a facial challenge because it found that the "law
    reache[d] a substantial amount of constitutionally protected conduct,"
    see Kolender, 
    461 U.S. at
    358 n.8 (internal quotation marks omitted),
    notwithstanding the dissenting argument that the law was not "imper-
    missibly vague in all of its applications" and could not be facially
    attacked because it had an "unmistakable core that a reasonable per-
    son would know is forbidden," 
    id. at 370, 371-72
     (emphasis added).
    The concern that led the Court to allow the facial challenge was the
    law's "`potential for arbitrarily suppressing First Amendment liber-
    ties'" and the "constitutional right to freedom of movement." See 
    id. at 358
     (quoting Shuttlesworth v. Birmingham, 
    382 U.S. 87
    , 90
    (1965)). The same concerns underlie the curfew in this case. The
    main difference is Charlottesville's First Amendment"exception,"
    but, as I explain below, this exception is itself impermissibly vague
    and therefore cannot save the statute from a facial challenge. Indeed,
    the need in this case for facial review is even stronger than that in
    Kolender because the curfew ordinance applies to all law-abiding
    minors under the age of seventeen. The law in Kolender, by contrast,
    required credible and reliable identification only when peace officers
    had already made a justifiable Terry stop, that is, after they had tem-
    porarily detained a suspect because of "a reasonable and articulable
    suspicion that the person seized [wa]s engaged in criminal activity,"
    Reid v. Georgia, 
    448 U.S. 438
    , 440 (1980) (per curiam) (following
    Terry). Accordingly, Kolender makes clear that a facial challenge is
    appropriate in this case.
    The majority errs in asserting that because "core First Amendment
    activities" are protected by the ordinance, "marginal cases" may be
    46
    challenged as the statute is applied, see ante at 17. Even assuming that
    "core" activities are protected, this argument appears to parallel the
    dissenting view rejected by Kolender. The proper inquiry is not
    whether some core values are protected but whether the curfew
    "reaches `a substantial amount of constitutionally protected conduct,'"
    Kolender, 
    461 U.S. at
    358 n.8 (quoting Hoffman, 
    455 U.S. at 494
    ).
    The First Amendment protects a substantial amount of conduct in
    addition to "political protest and religious worship," ante at 17, and
    the vagueness doctrine must be applied to protect these rights.10
    Deferring review for as-applied challenges impermissibly risks chill-
    ing the exercise of a substantial amount of constitutionally protected
    activity. Cf. 11126 Baltimore Blvd., Inc. v. Prince George's County,
    
    58 F.3d 988
    , 993-94 (4th Cir. 1995) (en banc) (ruling that "courts
    must permit" facial challenge when there is significant risk of chilling
    First Amendment speech because chill "`can be effectively alleviated
    only through a facial challenge'" (quoting City of Lakewood v. Plain
    Dealer Publishing Co., 
    486 U.S. 750
    , 757 (1988))). I now turn to why
    Charlottesville's curfew is void for vagueness.
    C.
    "A law is considered [unconstitutionally] vague if `a person of nor-
    mal intelligence must guess at its meaning and differ as to its applica-
    tion.'" Elliott v. Administrator, Animal & Plant Health Inspection
    Serv., 
    990 F.2d 140
    , 145 (4th Cir. 1993) (quoting Connally v. General
    Constr., 
    269 U.S. 385
    , 391 (1926)); see also United States v. Lanier,
    
    117 S. Ct. 1219
    , 1225 (1997) (unanimous decision); Roberts v. United
    States Jaycees, 
    468 U.S. 609
    , 629 (1984). Although this standard
    applies generally to vagueness challenges, "[t]he degree of vagueness
    that the Constitution tolerates . . . depends in part on the nature of the
    enactment," Hoffman Estates, 
    455 U.S. at 498
    . When a statute
    involves the "economic regulation" of business, it is "subject to a less
    _________________________________________________________________
    10 The majority's citations to Hoffman Estates do not support the con-
    clusion that federal courts may wait for as-applied challenges in "mar-
    ginal cases," see ante at 17. Hoffman Estates clearly limits its analysis to
    those cases in which "no constitutionally protected conduct" is impli-
    cated by the challenged law. See 455 U.S. at 494-95, 497; Kolender, 
    461 U.S. at
    458 n.8. A wait-and-see approach is justified only when there is
    no risk of chilling a substantial amount of protected activity.
    47
    strict vagueness test." 
    Id. at 498
    . Similarly, if a law includes a scienter
    requirement, this too will relax the degree of clarity required because
    scienter can "mitigate a law's vagueness." See 
    id. at 499
    . On the other
    hand, "the standard of certainty is higher" for statutes that impose
    criminal, as opposed to civil, sanctions. See Kolender, 
    461 U.S. at
    358
    n.8; Hoffman Estates, 
    supra at 498-99
    . The last and "most important
    factor affecting the [degree of] clarity that the Constitution demands
    of a law is whether it threatens to inhibit the exercise of constitution-
    ally protected rights." 
    Id. at 499
    . If it does, "a more stringent vague-
    ness test should apply" so that protected activity will not be chilled.
    See id.; see also Smith v. Goguen, 
    415 U.S. 566
    , 573 (1974) ("Where
    a statute's literal scope, unaided by a narrowing state court interpreta-
    tion, is capable of reaching expression sheltered by the First Amend-
    ment, the [vagueness] doctrine demands a greater degree of
    specificity than in other contexts."); Grayned, 
    408 U.S. at 109
    ("[W]here a vague statute `abut[s] upon sensitive areas of basic First
    Amendment freedoms,' it `operates to inhibit the exercise of [those]
    freedoms.'" (second and third alterations in original)); Button, 
    371 U.S. at 432
     (standard is "strict in the area of free expression"). These
    factors all point to the conclusion that the Charlottesville curfew must
    be evaluated for vagueness under a strict standard. Under that stan-
    dard, I would hold that the ordinance's First Amendment exception
    violates the Due Process Clause.11
    _________________________________________________________________
    11 Federal courts do not look simply to the statutory language to deter-
    mine if the law is vague. If a federal statute is involved, a federal court
    may construe the disputed provision to remove its vagueness. See United
    States v. 12 200-ft. Reels of Super 8mm. Film, 
    413 U.S. 123
    , 130 n.7
    (1973); cf. CISPES v. FBI, 
    770 F.2d 468
    , 473-75 (5th Cir. 1985) (con-
    struing federal statute to avoid overbreadth). Likewise, when a state pro-
    vision is challenged as vague on its face, a federal court must "`consider
    any limiting construction that a state court or enforcement agency has
    proffered.'" See Ward v. Rock Against Racism , 
    491 U.S. 781
    , 795-96
    (1989) (quoting Hoffman Estates, 
    455 U.S. at
    494 n. 5). If no narrowing
    interpretation is provided by the state, however, a federal court is "with-
    out power to remedy the [statute's] defects by giving [it] constitutionally
    precise content." See Hynes v. Mayor of Oradell, 
    425 U.S. 610
    , 622
    (1976); see also Smith v. Goguen, 
    415 U.S. 566
    , 575 (1974).
    48
    D.
    The last of the curfew's eight statutory exceptions allows a minor
    to remain in public during curfew hours when "the minor is exercising
    First Amendment rights protected by the United States Constitution,
    such as the free exercise of religion, freedom of speech and the right
    of assembly." City Code § 17-7(b)(8). Because this exception oper-
    ates in an area of protected conduct, it must satisfy a strict vagueness
    standard so as not to chill the exercise of constitutional rights. Under
    this standard, the curfew's First Amendment "exception" makes the
    ordinance impermissibly vague. By defining the exception in vague
    and ambiguous terms, the ordinance impermissibly forces persons of
    normal intelligence to guess as to what conduct is illegal and fails to
    provide minimal guidelines for law enforcement.
    The vagueness of the First Amendment exception is intuitively
    plain. Indeed, its language is anything but clear. What are "First
    Amendment rights"? What is considered to be "speech"? Does it
    include written communication? What of expressive conduct that does
    not involve oral or written communication? What types of speech are
    "protected" by "freedom of speech"? Is commercial speech protected?
    If so, to what extent? What is the "free exercise" of religion? And
    what of the "right of assembly"? Do two friends have the "right" to
    "assemble" or meet at a coffeehouse? This says nothing of the general
    First Amendment rights (e.g., association, press, petition) that the
    City's exception leaves unmentioned. The questions above are diffi-
    cult enough for courts, Congress, and constitutional scholars, let alone
    for someone with no legal training. And when answers are given, they
    are often imprecise and turn on the specifics of a case and a balancing
    of many factors. Furthermore, First Amendment jurisprudence is a
    vast and complicated body of law that grows with each passing day.
    As a result, criminal conduct cannot be defined by simply referring
    to the title (First Amendment) or subtitle (speech or assembly) of a
    particular right.
    Although the Supreme Court has not addressed the First Amend-
    ment issue before us, its decisions involving statutes that define crimi-
    nal conduct by referring to the principles of constitutional "due
    process" and "equal protection" are instructive. Like the First Amend-
    ment principles of "freedom of speech" and the"free exercise of reli-
    49
    gion," due process and equal protection are complicated and nuanced
    constitutional concepts that are not susceptible to general definition.
    The existence of these rights likewise depends on the specifics of a
    case and a balancing of the interests involved. As I will show, the
    Supreme Court's opinions in Screws v. United States, 
    325 U.S. 91
    (1945) (plurality opinion), United States v. Guest, 
    383 U.S. 745
    , 753-
    55 (1966), and later cases demonstrate that constitutional "due pro-
    cess" and "equal protection" are inherently too vague to be used to
    define criminal conduct without a carefully defined scienter require-
    ment. This applies with at least as much, if not more, force to Char-
    lottesville's mention of the First Amendment to define criminal
    conduct by way of exception.
    In Screws the Court upheld a statute under which several law
    enforcement officers had been convicted of illegally depriving a pris-
    oner of his life without "due process" of law. See 
    325 U.S. at 93, 100
    .
    The defendants were prosecuted under 
    18 U.S.C. § 20
    ,12 which made
    it illegal to "`willfully'" deprive another"`of any rights, privileges, or
    immunities secured or protected by the Constitution and laws of the
    United States'" under the color of state law. See 
    id.
     They argued to
    the Court that this provision was impermissibly vague as applied to
    their convictions for depriving the deceased of"due process" because
    the law provided "no ascertainable standard of guilt." See 
    id. at 94-95
    .
    Justice Douglas, writing for a four-justice plurality, said that
    the decisions of the courts are, to be sure, a source of refer-
    ence for ascertaining the specific content of the concept of
    due process. But even so the Act would incorporate by ref-
    erence a large body of changing and uncertain law. That law
    is not always reducible to specific rules, is expressible only
    in general terms, and turns many times on the facts of a par-
    ticular case. Accordingly, it is argued that such a body of
    legal principles lacks the basic specificity necessary for
    criminal statutes under our system of government. Congress
    did not define what it desired to punish but referred the citi-
    zen to a comprehensive law library in order to ascertain
    what acts were prohibited. To enforce such a statute would
    _________________________________________________________________
    12 
    18 U.S.C. § 20
     was the predecessor to 
    18 U.S.C. § 242
    , discussed
    infra.
    50
    be like sanctioning the practice of Caligula who"published
    the law, but it was written in a very small hand, and posted
    up in a corner, so that no one could make a copy of it."
    
    Id. at 96
     (quoting Suetonius, Lives of the Twelve Caesars 278).
    Indeed, seven justices indicated that § 20's use of "due process" to
    define criminal conduct would have been unconstitutionally vague
    without something else to mitigate its ambiguous incorporation of
    constitutional principles. See id. at 105 (§ 20 must be construed with
    narrow scienter requirement to "avoid grave constitutional ques-
    tions"); id. at 149-50 (Roberts, J., dissenting) ("[a]ll but two" justices
    agreed on this issue). However, the plurality concluded that the statute
    could be saved by construing "willfully" to require a specific intent
    to purposefully deprive another of a specific federal right made defi-
    nite by the express terms of the Constitution and laws of the United
    States or by the decisions interpreting them. See id. at 100-05. Thus,
    Screws "recognized that the expansive language of due process that
    provides a basis for judicial review is, when incorporated by reference
    into § 242, generally ill-suited to the far different task of giving fair
    warning about the scope of criminal liability," Lanier, 
    117 S. Ct. at 1225
     (unanimous decision), but that the use of a strict scienter
    requirement could sufficiently mitigate this ambiguity.
    The Court in Guest relied on Screws to reject a similar vagueness
    challenge to a prosecution for conspiracy to deprive black citizens of
    rights protected by the Equal Protection Clause. The Court again
    emphasized that the specific intent requirement of 
    18 U.S.C. § 241
    ,
    like that of § 242, removed the problem of the statute's vagueness.
    See Guest, 
    383 U.S. at 753-54
    ; 
    id. at 785
     (Brennan, J., concurring in
    part) (incorporation of constitutional provisions"brings § 241 close to
    the danger line of being void for vagueness" but"stringent scienter
    requirement saves [it] from condemnation"); see also United States v.
    Kozminski, 
    487 U.S. 931
    , 941 (1988) (tension between requirement
    of "definite standard of guilt" and "incorporat[ion] by reference a
    large body of potentially evolving federal law" is resolved with strict
    scienter requirement).
    Recently, a unanimous Supreme Court in Lanier reiterated the prin-
    ciples established in Screws and Guest . The Court again recognized
    that "in lieu of describing the specific conduct it forbids, [the] general
    51
    terms [of §§ 241 and 242] incorporate constitutional law by reference.
    . . . The result is that neither the statutes nor a good many of their con-
    stitutional referents delineate the range of forbidden conduct with par-
    ticularity." Id. at 1224. Consequently, this "affront to the [due
    process] requirement" of fair notice is made permissible only when
    "willful violators" deprive (or conspire to deprive) others of rights
    that "have been `made specific' by the text or settled interpretations."
    See id. at 1225 (quoting Screws, 
    325 U.S. at 105
    ). "[W]illful violators
    `certainly are in no position to say that they had no adequate advance
    notice'" of the definition of the crime. 
    Id.
     (quoting Screws, 
    325 U.S. at 105
    ).
    Like the statutes in Screws, Guest, and Lanier, the Charlottesville
    curfew's First Amendment exception incorporates a large and grow-
    ing body of law that is not reducible to specific rules and that turn on
    a balancing of numerous factors. Unlike the federal statutes, however,
    the City's curfew ordinance has no scienter requirement that could
    mitigate the inherent vagueness of First Amendment jurisprudence.
    Most important, though, the curfew regulates in areas involving con-
    stitutionally protected activity, while §§ 241 and 242 do not. In fact,
    those sections are designed to punish those who willfully deprive and
    conspire to deprive others of constitutional rights, as, for example, in
    United States v. Lanier, where the defendant, a state judge, sexually
    assaulted (in his office) several employees and others who had busi-
    ness before him. Lanier, 
    117 S. Ct. at 1222-23
    . Such conduct lies far
    outside of the realm of constitutionally protected action, and therefore
    §§ 241 and 242 do not have to meet the strict vagueness standard that
    applies when protected activity is involved. The curfew, however,
    does. Consequently, the ordinance must survive scrutiny under a
    vagueness standard much more strict than that applied in Screws and
    Guest. Under that standard and in light of the absence of a scienter
    element capable of saving the ordinance, I would hold that the First
    Amendment exception and the ordinance are void for vagueness.13
    _________________________________________________________________
    13 The majority misses the mark when it says that a scienter require-
    ment would necessarily expand, and not narrow, the breadth of Char-
    lottesville's curfew because subsection (b)(8) "provides an exception
    from liability" and does not affirmatively define criminal conduct. See
    ante at 16 n.*. The curfew ordinance uses section (b) and its eight excep-
    tions to define what conduct is illegal. See City Code § 17-7(b). With
    52
    The testimony of Charlottesville's Chief of Police proves the stat-
    ute's ambiguity. When asked whether two fifteen-year-olds violate
    the ordinance by discussing politics in a coffee shop during the cur-
    few, the Chief said, "You're indoors, it's a public location, I . . . think
    technically under the ordinance it may be a violation. I doubt whether
    we would deal with it." Similarly, when asked if a fifteen-year-old
    who plays in a band in a local restaurant after curfew hours violates
    the curfew when he is not paid for the performance, the Chief
    answered, "I think that technically [the minor] is possibl[y] in viola-
    tion of the ordinance." However, "the officer would obviously have
    to make a decision about whether they're in violation or not. And I
    believe there's some discretion allowed." It is this discretion com-
    bined with the failure to define with specificity what conduct is illegal
    that makes the statute unconstitutional. The danger of chilling the
    exercise of constitutionally protected activity arises because of the
    uncertainty associated with the First Amendment exception.14
    The majority errs in supporting its reasoning with the fact that city
    councils appear to be placed "between a rock and a hard place," ante
    at 16. While it is true that curfews without exceptions will almost
    always impermissibly infringe upon substantive constitutional rights
    and that curfews with exceptions may be subject to vagueness chal-
    lenges, invalidation of this ordinance is still mandated by our Consti-
    tution. "Our Constitution is designed to maximize individual
    _________________________________________________________________
    respect to subsection (b)(8) in particular, the ordinance makes it a crime
    for minors to remain in public when not exercising First Amendment
    rights. See id. § 17-7(b), (b)(8). Subsection (b)(8) thus plainly incorpo-
    rates the First Amendment to define the scope of criminal conduct. Even
    when a law is drafted to include exceptions in defining the crime, a
    scienter element that is applied to the criminal provision as a whole (and
    not just its exceptions) can reduce the objectionable vagueness of the
    law.
    14 It is of no constitutional consequence that the Chief testified that "if
    there's a question [as to whether the First Amendment exception
    applied,] we would go down on the side that it was a valid Constitutional
    kind of activity" and "would consult with the Commonwealth Attorney
    or the city attorney's office to see whether it was or not." "Well-
    intentioned prosecutors and judicial safeguards do not neutralize the vice
    of a vague law." Baggett, 
    377 U.S. at 373
    .
    53
    freedoms within a framework of ordered liberty. Statutory limitations
    on those freedoms are examined for substantive authority and content
    as well as for definiteness or certainty of expression." Kolender, 
    461 U.S. at 357
     (emphasis added); see also Nunez v. City of San Diego,
    
    114 F.3d 935
    , 943-44 (9th Cir. 1997) (recognizing that interpreting
    curfew to avoid vagueness problems under Due Process Clause "may
    make it more difficult for the statute to pass constitutional muster on
    substantive grounds"). "[L]egislative bodies in draftsmanship obvi-
    ously have the same difficulty as do the judicial in interpretation.
    Nevertheless despite the difficulties, courts must do their best to
    determine whether or not the vagueness is of such a character `that
    men of common intelligence must necessarily guess at its meaning.'"
    Winters v. New York, 
    333 U.S. 507
    , 518 (1948); see also Kingsley
    Int'l Pictures Corp. v. Regents of the Univ., 
    360 U.S. 684
    , 694 (1959)
    (Frankfurter, J., concurring). Although we may "appreciate the diffi-
    culties of drafting precise laws," we must require that all statutes meet
    constitutional standards for clarity. See City of Houston v. Hill, 
    482 U.S. 451
    , 465 (1987). If we did otherwise, we would forgo our duty
    to enforce the mandates of the Due Process Clause. 15
    Taken to its logical conclusion, the majority's reasoning would
    immunize all statutes regulating conduct involving the exercise of
    First Amendment rights whenever they contain a First Amendment
    "exception." Because such provisions would not be impermissibly
    _________________________________________________________________
    15 I also disagree with the majority's claim that the First Amendment
    exception "fortifies, rather than weakens, First Amendment values." See
    ante at 16. Because First Amendment rights can never be diminished by
    a city ordinance, see U.S. Const. art. VI, cl. 2, the City's exception does
    nothing but restate a well-settled constitutional restriction on its substan-
    tive regulatory authority. Indeed, the majority's citation to CISPES v.
    FBI, 
    770 F.2d 468
     (5th Cir. 1985), contradicts its position. Cf. ante at 16.
    CISPES recognized that "such a provision cannot substantively operate
    to save an otherwise invalid statute." See 
    770 F.2d at 474
    . A statement
    similar to the First Amendment exception in this case, however, was
    used by the Fifth Circuit to determine Congressional intent and guide its
    construction of the provision to avoid substantial overbreadth. See 
    id.
    Here, though, we are faced with a local, not a federal, statute, and there-
    fore we are without the authority to provide a limiting construction that
    might save the ordinance. See Hynes, 
    425 U.S. at 622
    . The First Amend-
    ment exception thus does little to advance First Amendment values.
    54
    vague under the majority's analysis, the statutes would be immune
    from both substantive and vagueness challenges. Substantively the
    statute cannot, according to its own terms, violate the constitution. In
    fact, it incorporates the Constitution's protections. The upshot is that
    facial attacks could never be brought and that statutes containing
    these exceptions could be challenged only as they are applied. This
    squarely conflicts with the Supreme Court's long-standing concern
    with the potential chill of constitutionally protected activity created
    by the mere existence of vague criminal statutes and the potential for
    their arbitrary enforcement.
    For these reasons, I would hold that the curfew's First Amendment
    "exception" renders the ordinance impermissibly vague on its face.
    Until the ordinance is amended by the City Council or given a con-
    struction by state courts that sufficiently reduces its unconstitutional
    vagueness, its enforcement conflicts with the constitutional guarantee
    of due process of law.
    IV.
    In sum, I would hold that equal protection challenges by minors to
    laws that regulate in the area of fundamental rights must be subject
    to strict scrutiny. In my opinion the Charlottesville ordinance fails this
    standard. Even if the ordinance survived the equal protection chal-
    lenge, however, it would be unconstitutional in its present form. The
    curfew's First Amendment exception is impermissibly vague in viola-
    tion of the Due Process Clause. For these reasons, I respectfully dis-
    sent.
    55