The Supreme Court Considers the Boundaries of Anti-Trespassing Laws:
If They are Too Broad, Do They Violate the First Amendment?

By JULIE HILDEN


julhil@aol.com
----
Monday, Apr. 28, 2003

On Wednesday, April 30, the Supreme Court will hear oral argument in Virginia v. Hicks. In the case, Kevin Hicks argues that his convictions for trespassing - based on a Richmond, Virginia housing authority's policy - violate the First Amendment.

Hicks says the policy tends to suppress political speech, and other forms of constitutionally protected expression, and therefore, it can't be applied to anyone, including him. But the state of Virginia says that since it wasn't Hicks's own speech that was suppressed, he doesn't have a right to challenge his conviction on First Amendment grounds.

The Court's resolution of the case could likely turn on a very technical, but interesting doctrine under the First Amendment, regarding who may bring suit in such case. In addition, it may touch on how differently the government may treat public housing residents, as compared to those who own or rent privately.

The Basic Facts of Virginia v. Hicks

The case arose because the Richmond housing authority owned the streets within Whitcomb Court, a low-income housing development. The Authority feared the streets were turning into an "open-air drug market," largely due to the activities of non-Whitcomb-Court-residents.

Accordingly, the Authority developed a policy of denying access to any nonresident who does not have what its Housing Manager deemed a legitimate reason to visit the development. It also marked the limits of the area with "No Trespassing: Private Property" signs warning that "Unauthorized persons will be subject to arrest and prosecution."

There were no written policies or procedures governing the Housing Manager's decisions regarding who had access - even if the person seeking access wanted to distribute flyers or engage in other First-Amendment protected activity.

Hicks, however, apparently was not interested in distributing flyers, or otherwise exercising his First Amendment rights. Instead, it seems that he just wanted to visit his son - to whom, on this occasion, he was trying to deliver diapers. (There may be a constitutional right to access to one's children, but it's probably not a First Amendment right. The First Amendment does establish a right of association, but it's usually interpreted as a right to associate for political purposes.)

How, then, can Hicks sue under the First Amendment? The answer is that, in the First Amendment context, there is a special doctrine called "overbreadth." The overbreadth doctrine allows a person to attack a statute as a whole as unconstitutional, even if the way it was applied to him is entirely constitutional - as long as lots of its other applications are unconstitutional.

To determine whether a plaintiff such as Hicks can bring an overbreadth claim, the court must decide whether there are other applications of the housing policy, that also suppress First Amendment-protected speech. Does the policy mostly serve another purpose, that only impacts speech in minor respects? Or does it mostly serve the goal of suppressing speech? If the Court decides that the policy does the latter, then the overrbreadth doctrine could apply.

This comparison is inherently pretty speculative. But for some statutes, the answer is relatively clear. For example, a statute that said "Don't put anything on the Whitcomb Court bulletin boards" would predominantly target speech. A statute that said "Don't deal drugs in Whitcomb Court or you'll be banished forever" would predominantly target crime.

How the Overbreadth Doctrine May Apply in Hicks's Case

So is the housing policy from the Hicks case closer to "Don't post anything on the bulletin boards" or "Don't deal drugs or you'll be banished"? It's hard to tell, because there is no written policy. Instead, there is just the Housing Manager - sometimes with the help of higher-ups at the Housing Authority - exercising personal judgment when deciding whether visitors have a good enough reason to enter the development.

And among the visitors, there will doubtless be some drug dealers, some conscientious dads, some people who just want to hang out with friends, and some people campaigning for local, state and national elections and other political causes.

Interestingly, the people who just want to hang out may not be protected by the First Amendment. In the 1972 case of Papachristou v. City of Jacksonville, the Court made clear that there was no written Constitutional protection for "loafing" and "loitering." (Nevertheless, the opinion - written by Justice Douglas - invoked Whitman and Thoreau, applauding these activities as having "been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity." Douglas also complimenting hanging out as being part of a health nonconformism - "lives of high spirits rather than hushed, suffocating silence.")

In light of these predictions and this precedent, how will the proportion of First Amendment-protected visitors to Whitcomb Court compare to the proportion of other visitors? The honest answer is: Who can really know?

Hicks Should Be Allowed to Challenge The Housing Authority's Lawless Discretion

Importantly, the burden of the fact that this question is so hard to answer can be put on the shoulders of the Housing Authority itself. If it had bothered to have separate policies for suspected drug dealers, political candidates, and diaper-carrying dads, and to say which it was applying, the answer would be a lot clearer. In that instance, Hicks - the diaper-carrying dad - might have another kind of case, though not a First Amendment one.

This whole dynamic explains why it makes sense to let Hicks sue, even if his own First Amendment rights were not violated. After this suit, if Hicks wins, the Housing Authority is probably going to have to develop written policies, rather than vesting unchecked discretion in a single decisionmaker - a system that always invites abuse. In short, it will have to operate under law, not whim. And Hicks will be able to take credit for that.

Once the specific, written policies have been put in place, though, it's probable that only those whose speech rights have been violated will be able to bring First Amendment cases in the future. This interesting dynamic - by which overbreadth cases tend not to be repeated in the same context - naturally limits the doctrine's use. The very clarity overbreadth cases bring makes future overbreadth cases unlikely.

Beyond the First Amendment: Created Gated Public Housing

In the end, however, the most outrageous aspect of the Housing Authority policy may be only partially tied to the First Amendment. It is this: In order to gain more control over public housing residents, a public Housing Authority has tried to privatize previously public streets by purchasing them from the City of Richmond, and screening who may visit its residents.

It's one thing for private citizens to decide that they want to jointly live in a gated community that is run condo-style, with a security guard at the gate. It's another thing entirely when private citizens - who are forced by economic circumstances or personal crises to live in public housing - must live under a "gated community" policy for which they did not vote, and which they may not like.

Can't Virginia fight drug dealing without a lockdown on public housing areas? It's prisoners whose visitors can typically be regulated - not ordinary citizens.

Moreover, even if residents were to vote for the policy, isn't there something to be said for the idea that space that is publicly owned is inherently public space? Certainly access restrictions that required a "legitimate purpose" - as determined by an official with complete discretion - to visit public libraries or the museums on Washington's Mall would be anathema. If loitering and loafing are creative activities too, as Justice Douglas saw them, shouldn't the streets also be free to all?


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in the U.S. in August 2003 by Plume Books, in the U.K. by Bantam, and in French translation by Actes Sud.

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