Loitering-trespass case with First Amendment overtones to get high-court review

Monday, January 27, 2003

Loafing and loitering, the Supreme Court said 31 years ago, are among the “amenities of life” that make America great.

Even though they are not mentioned in the Constitution, the justices agreed, “These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.”

Now, in these less high-spirited times when loitering is often viewed suspiciously as a sign of criminal intent, the Supreme Court may soon revisit the sentiments expressed in those words penned by the late Justice William O. Douglas in Papachristou v. City of Jacksonville (1972).

The Court on Jan. 24 agreed to consider Virginia v. Hicks, a case in which the Commonwealth of Virginia is seeking to revive a policy aimed at shutting down a “drug market” operating within a Richmond housing project. Under that policy, city housing officials had “unfettered discretion” to determine which non-residents should and should not be allowed to be on the streets and sidewalks within the project. As part of the effort, Richmond turned the public streets that run through the project into private streets, deeding them over to the housing authority.

Kevin Hicks, who had been warned previously about being on the streets within the Whitcomb Court project, said he was delivering diapers to his son when police stopped him inside the project in January 1999. He was charged with trespass and convicted, but he appealed, claiming the policy violated his First Amendment free-speech rights. The government responded that he had no standing to challenge his conviction on First Amendment grounds, in part because Hicks could not show that the policy threatened to suppress any expression protected by the First Amendment.

But the Virginia Supreme Court disagreed, finding that because of the importance of First Amendment rights, U.S. Supreme Court precedents allow individuals to challenge convictions on those grounds — even if they themselves were punished for non-speech reasons, and even if the law was constitutionally applied to them. (Loitering generally falls under the First Amendment freedom of assembly, but courts and litigants do not always make such distinctions.)

“Even though the Housing Authority’s trespass policy, which is written in part and unwritten in part, is designed to punish activities that are not protected by the First Amendment, the policy also prohibits speech and conduct that are clearly protected by the First Amendment,” the Virginia court ruled, finding the policy to be too broad.

The state court highlighted testimony from Richmond housing officials indicating that they could go beyond written policies and decide on their own whether, for example, non-residents should be allowed to distribute leaflets or hold church meetings within the project.

Dissenting justices in Virginia said that in their view, keeping Hicks from bringing diapers to his son did not amount to a First Amendment violation.

Virginia appealed to the nation’s highest court in part to resolve the standing issue, arguing that Supreme Court precedents should not be extended to allow laws to be challenged on First Amendment grounds by “anyone at all.”

The state is also asking the Court to recognize a distinction between actions a government takes as a landlord and laws it may pass as a sovereign state.

Another issue that has been brewing in lower courts may also play a role in the Virginia case, which will be argued in April.

The Virginia branch of the American Civil Liberties Union aided Hicks in his appeal to combat what it saw as a dangerous trend. “We were concerned that the city’s scheme, if allowed to continue, might lead to the privatizing of parks and other spaces normally open to the public for demonstrations or other First Amendment activities,” says state ACLU director Kent Willis. “Can you imagine the government selling a public park to a private company in order to control who uses the space? Once (it were) privatized, anyone who entered the park without permission could be arrested for trespassing. That is essentially what the City of Richmond was trying to do.”

That very issue is at the center of a protracted legal dispute in Salt Lake City over what kind of speech may take place on a section of Main Street that was sold to the Mormon Church. The U.S. Court of Appeals for the 10th Circuit ruled last year that in spite of the sale, church-requested speech restrictions on the property could not be imposed.

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