VIRGINIA v. HICKS

Citation539 U.S. 113
Decision Date16 June 2003
CourtUnited States Supreme Court
Syllabus

VIRGINIA v. HICKS

CERTIORARI TO THE SUPREME COURT OF VIRGINIA No.02-371. Argued April 30, 2003-Decided June 16,2003

The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owns and operates Whitcomb Court, a lowincome housing development. In 1997, the Richmond City Council conveyed Whitcomb Court's streets to the RRHA in an effort to combat crime and drug dealing by nonresidents. In accordance with the terms of conveyance, the RRHA enacted a policy authorizing the Richmond police to serve notice on any person lacking "a legitimate business or social purpose" for being on the premises and to arrest for trespassing any person who remains or returns after having been so notified. The RRHA gave respondent Hicks, a nonresident, written notice barring him from Whitcomb Court. Subsequently, he trespassed there and was arrested and convicted. At trial, he claimed that RRHA's policy was, among other things, unconstitutionally overbroad. The Virginia Court of Appeals vacated his conviction. In affirming, the Virginia Supreme Court found the policy unconstitutionally overbroad in violation of the First Amendment because an unwritten rule that leafleting and demonstrating require advance permission vested too much discretion in Whitcomb Court's manager.

Held: The RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. Pp. 118-124.

(a) Under that doctrine, a showing that a law punishes a "substantial" amount of protected free speech, "in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U. S. 601, 615, suffices to invalidate all enforcement of that law "until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression," id., at 613. Only substantial overbreadth supports such facial invalidation, since there are significant social costs in blocking a law's application to constitutionally unprotected conduct. Pp. 118-120.

(b) This Court has jurisdiction to review the First Amendment merits question here. Virginia's actual injury in fact-the inability to prosecute Hicks for trespass-is sufficiently distinct and palpable to confer Article III standing. pp. 120-121.

(c) Even assuming the invalidity of the "unwritten" rule for leafleters and demonstrators, Hicks has not shown that the RRHA policy prohibits a substantial amount of protected speech in relation to its many legit-

114

Syllabus

imate applications. Both the notice-barment rule and the "legitimate business or social purpose" rule apply to all persons entering Whitcomb Court's streets, not just to those seeking to engage in expression. Neither the basis for the barment sanction (a prior trespass) nor its purpose (preventing future trespasses) implicates the First Amendment. An overbreadth challenge rarely succeeds against a law or regulation that is not specifically addressed to speech or conduct necessarily associated with speech. Any applications of the RRHA's policy that violate the First Amendment can be remedied through as-applied litigation. Pp. 121-124.

264 Va. 48, 563 S. E. 2d 674, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court. SOUTER, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 124.

William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the briefs were Jerry W Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Christy A. McCormick and A. Cameron O'Brion, Assistant Attorneys General.

Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General Chertoff and McCallum, James A. Feldman, Michael Jay Singer, and Stephanie R. Marcus.

Steven D. Benjamin argued the cause for respondent.

With him on the brief were Amanda Frost, Brian Wolfman, and Alan B. Morrison. *

*Briefs of amici curiae urging reversal were filed for the City of Richmond et al. by William G. Broaddus, Jonathan T. Blank, William H. Baxter II, Godfrey T. Pinn, Jr., and John A. Rupp; for the Council of Large Public Housing Authorities et al. by Robert A. Graham, William F. Maher, and Carl A. S. Coan III; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National League of Cities et al. by Richard Ruda and James I. Crowley.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M. Carpenter; for the Richmond Tenants Organization et al. by Catherine

115

JUSTICE SCALIA delivered the opinion of the Court.

The issue presented in this case is whether the Richmond Redevelopment and Housing Authority's trespass policy is facially invalid under the First Amendment's overbreadth doctrine.

I A

The Richmond Redevelopment and Housing Authority (RRHA) owns and operates a housing development for lowincome residents called Whitcomb Court. Until June 23, 1997, the city of Richmond owned the streets within Whitcomb Court. The city council decided, however, to "privatize" these streets in an effort to combat rampant crime and drug dealing in Whitcomb Court-much of it committed and conducted by nonresidents. The council enacted Ordinance No. 97-181-197, which provided, in part:

" '§ 1. That Carmine Street, Bethel Street, Ambrose Street, Deforrest Street, the 2100-2300 Block of Sussex Street and the 2700-2800 Block of Magnolia Street, in Whitcomb Court ... be and are hereby closed to public

M. Bishop; for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler and Robert M. O'Neil; and for Watchtower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and Philip Brumley.

A brief of amici curiae was filed for the State of Alabama et al. by Jeremiah W (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, Erwin O. Switzer III, and Michele L. Jackson, Assistant Attorney General of Alabama, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Charlie J. Crist, Jr., of Florida, Mike Moore of Mississippi, Jim Petro of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodriguez of Puerto Rico, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, and Mark L. Shurtleff of Utah.

116

use and travel and abandoned as streets of the City of Richmond.'" App. to Pet. for Cert. 93-94.

The city then conveyed these streets by a recorded deed to the RRHA (which is a political subdivision of the Commonwealth of Virginia). This deed required the RRHA to "'give the appearance that the closed street, particularly at the entrances, are no longer public streets and that they are in fact private streets.'" Id., at 95. To this end, the RRHA posted red-and-white signs on each apartment building-and every 100 feet along the streets-of Whitcomb Court, which state: "'NO TRESPASSING[.] PRIVATE PROPERTY[.] YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA. UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION. UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS EXPENSE.'" Pet. for Cert. 5. The RRHA also enacted a policy authorizing the Richmond police

"'to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property.'" App. to Pet. for Cert. 98-99 (emphasis added).

Persons who trespass after being notified not to return are subject to prosecution under Va. Code Ann. § 18.2-119 (1996):

"If any person without authority of law goes upon or remains upon the lands, buildings or premises of an-

117

other, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof he shall be guilty of a Class 1 misdemeanor. "

B

Respondent Kevin Hicks, a nonresident of Whitcomb Court, has been convicted on two prior occasions of trespassing there and once of damaging property there. Those convictions are not at issue in this case. While the propertydamage charge was pending, the RRHA gave Hicks written notice barring him from Whitcomb Court, and Hicks signed this notice in the presence of a police officer.1 Twice after receiving this notice Hicks asked for permission to return; twice the Whitcomb Court housing manager said "no." That did not stop Hicks; in January 1999 he again trespassed at Whitcomb Court and was arrested and convicted under § 18.2-119.

At trial, Hicks maintained that the RRHA's policy limiting access to Whitcomb Court was both unconstitutionally overbroad and void for vagueness. On appeal of his conviction, a three-judge panel of the Court of Appeals of Virginia initially rejected Hicks' contentions, but the en banc Court of Appeals reversed. That court held that the streets of Whitcomb Court were a "traditional public forum," notwithstanding the city ordinance declaring them closed, and vacated Hicks' conviction on the ground that RRHA's policy violated the First Amendment. 36 Va. App. 49, 56, 548 S. E. 2d 249, 253 (2001). The Virginia Supreme Court affirmed the en

1 The letter stated, in part: "...

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