Virginia v. Hicks
Annotate this Case
539 U.S. 113 (2003)
OCTOBER TERM, 2002
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-
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
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