Decision in trespass case could affect overbreadth doctrine

Tuesday, June 17, 2003

Editor’s note: The Virginia Supreme Court on April 23, 2004, ruled unanimously that the Richmond anti-trespassing policy wasn’t too vague and that it didn’t violate Kevin Hicks’ right to intimate association. The U.S. Supreme Court had sent the case back to the state high court after ruling that the policy didn’t violate the First Amendment. Hicks’ attorney, Steven Benjamin, vowed to again ask the U.S. Supreme Court to overturn the policy. The case is Commonwealth of Virginia v. Kevin Lamont Hicks.

WASHINGTON — The Supreme Court yesterday upheld a Richmond, Va., policy that restricts the movement of unauthorized people on streets and sidewalks within a housing project. The ruling could affect an important tool in First Amendment litigation: the overbreadth doctrine.

The Richmond policy had been challenged on First Amendment grounds in Virginia v. Hicks as an overly broad regulation that could be used by government to suppress speech by demonstrators and leafleters seeking to spread their message within the area.

The city, seeking to eliminate drug trafficking and street crime within the Whitcomb Court project, turned over the streets to the local housing authority with the directive that the streets become private and off-limits to unauthorized people. Under the new policy Kevin Hicks, a nonresident who had been convicted previously of trespassing and damaging property at the project, was barred from the area. He was arrested in 1999 when he returned to the project to deliver diapers to one of his children who lived there.

Because Hicks himself was not involved in First Amendment activities when he was arrested, his lawyers invoked the overbreadth doctrine to plead his case in court. Normally, under rules regarding standing to sue, individuals may not base their complaints on how a law might affect others. But with the overbreadth doctrine, the Supreme Court has made an exception in First Amendment cases because of the chilling effect laws may have on speech.

The Virginia Supreme Court agreed with the overbreadth argument, finding that the policy prohibits “speech and conduct that are clearly protected by the First Amendment” even though it was not aimed at speech. The policy gives housing officials too much discretion to restrict speech that they find distasteful, the state court said.

But the high court reversed. Justice Antonin Scalia, writing for a unanimous court in Hicks, said the overbreadth doctrine has its limits. “There comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law — particularly a law that reflects legitimate state interest in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.”

Scalia also wrote, “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).” Hicks, Scalia said, had not shown sufficiently that the law has substantial effect on First Amendment activities to invoke the doctrine.

In spite of the lengthy discussion of overbreadth, in the end Scalia sidestepped the issue because Hicks had come from a state court, whose rules on standing are beyond the reach of the Supreme Court. Scalia said the Court couldn’t rule definitively on whether Hicks had the standing to sue by invoking the overbreadth doctrine, because such matters of standing are up to the state.

But he went on to say that the Court could decide the merits of the First Amendment claim because the state of Virginia did have standing to challenge the state high court ruling in federal court. Analyzing the First Amendment issue, however, necessarily requires an assessment of whether the policy is overly broad. So, overbreadth is a fair topic to consider on the merits, but not on the threshold question of whether a person has standing to sue in the first place.

Scalia also noted that the policy could still be challenged through as-applied litigation by someone whose First Amendment activities had actually been limited.

Mark Lopez, an American Civil Liberties Union lawyer who wrote a brief in Hicks, said yesterday the ruling’s impact would be limited in part because the Virginia Supreme Court had “pushed overbreadth to its outer limits,” making it a unique case.

But Lopez said it was disturbing that the Court had not shown more sensitivity to the basic fact that Hicks spent a year in jail for “nothing more than walking on a public street.”

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