Justices ask if trespass case is free-speech issue

Thursday, May 1, 2003

WASHINGTON — At issue in the Supreme Court case of Virginia v. Hicks, broadly speaking, is whether a city can turn some of its streets and sidewalks into a private zone where people engaged in First Amendment activities can be barred.

Instead, at oral arguments in the case yesterday, much of the discussion turned on whether Virginia v. Hicks is a First Amendment case at all.

The city of Richmond, in an effort to eliminate drug-trafficking in a public housing project, in effect privatized the project’s streets and sidewalks, making them off-limits to any non-resident who could not demonstrate a legitimate “business or social purpose” for being there.

Police enforced the policy against Kevin Hicks — whose mother and children lived in the project — when he entered the project ostensibly to deliver diapers. Hicks had previously been told he was not welcome on the premises because of a variety of past offenses. He challenged the arrest, and the Virginia Supreme Court ruled that the policy was so overbroad, giving government officials so much discretion, that it violated the First Amendment.

But attorneys for Virginia argued — and the justices appeared to agree — that because Hicks himself was not doing anything remotely connected to the First Amendment when he was arrested, the Virginia court acted improperly when it used the First Amendment as a basis for overturning the policy. “He was a common trespasser,” insisted William Hurd, Virginia’s solicitor.

Normally, under the Court’s doctrine on “standing” to sue, someone cannot challenge a law based on its potential impact on others. Because of the importance of the First Amendment, the Court has loosened that general principle somewhat, to allow challenges based on the overbreadth of a law that could restrict First Amendment rights of others.

But several justices appeared reluctant to open the door so wide that even someone like Hicks, who in the words of Justice Stephen Breyer “has nothing to do with speech,” could make a First Amendment challenge based on the untested impact of a law on unknown First Amendment actors. Justice David Souter worried that if Hicks prevailed, every trespass law in America would be subject to a First Amendment challenge. “How could we administer that?” Souter asked.

Hicks’ lawyer Steven Benjamin gamely argued that Hicks in fact was engaged in First Amendment activities by seeking to communicate with his family.

But Justice Anthony Kennedy quickly brushed that assertion aside, admonishing Benjamin not to “put too much on the First Amendment.” Placing too many activities under the protective umbrella of the First Amendment, he said, “tends to trivialize the First Amendment.”

Deputy Solicitor General Michael Dreeben, arguing on Virginia’s behalf, suggested that the Court remand the Hicks back to the Virginia Supreme Court.

The idea appeared to appeal to several justices, especially when Benjamin indicated that several other legal theories — including vagueness and freedom of movement — were still available to his client if the case was sent back to Virginia.

The argument did at one point expand to a general discussion of whether a government can ever turn streets and sidewalks — traditionally viewed as public forums — into private property where restrictions are allowed.

When Benjamin asserted that the housing project’s streets were still public, in spite of the city’s actions to the contrary, Justice Antonin Scalia asked whether the street and sidewalk in front of the governor’s mansion in its compound in Richmond had to remain public to one and all.

“That street, I would call a driveway,” said Benjamin, neatly avoiding the question.

Breyer then mentioned that in Cambridge, Mass., where he lives part-time, there are many “private ways.” He added, “No one knows what that means.”

To which Justice Antonin Scalia replied, “There are a lot of things up in Cambridge that people don’t understand what they mean.”

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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