The Supreme Court Rightly Rejects a Free Speech Challenge In Virginia v. Hicks, Which Is, At Heart, a Simple Trespassing Case

By BARTON ARONSON

Wednesday, Jun. 18, 2003

On Monday, June 16, the Supreme Court ruled unanimously that public housing authorities have the right to bar drug dealers and vandals from the streets of our most vulnerable communities. The case, Virginia v. Hicks, had been watched closely by such authorities across America.

Hicks had been inaccurately billed as a free speech case. In truth, it was about nothing more than the homely laws of trespass and their role in fostering the civility of our public spaces.

Technically, the law enforcement authority won the case. But the real winners here are the people who live - rarely by choice - in public housing communities across the country.

The Facts of Hicks: A Housing Authority Exercises Its Ordinary Powers as Landlord

Whitcomb Court is a Virginia Housing development run by the Richmond Redevelopment and Housing Authority, the local housing authority for the area. The development is a set of buildings laid out over several city streets.

The Authority is responsible for policing the buildings that are part of the Whitcomb Court project. In doing so, it has the same power as any landlord. Among other powers, for example, it can exclude people who aren't residents when those people have a history of troublemaking.

That's hardly unusual. In every residential community in America - from apartments and condominium complexes, to co-ops, to gated suburbs - security forces routinely bar from the premises people caught dealing drugs, committing property crimes, harassing residents, or just causing trouble. Public housing projects are - and should be - no different.

Most of these various communities "bar" certain visitors - handing them a written notice stating that they are no longer permitted on the premises. Barring notices usually contain the reason for the bar, and generally carry either the subject's signature (acknowledging he's been notified) or that of a security officer (saying that the subject saw the notice, but refused to sign it).

Subsequently violating a barring notice is usually a basis for criminal prosecution for trespass, unlawful entry, or whatever equivalent crime the relevant criminal code provides.

Different communities impose different triggers for getting a barring notice. Whitcomb Court, for instance, reserved the right to bar nonresidents who could not show a "legitimate business or social purpose" for being present on the property.

The process of barring and prosecution is critical to the safety of some of our most vulnerable neighborhoods. Without it, we'd have to catch well-known drug dealers in the act before we could get them off the streets. Without it, we'd have to catch abusive boyfriends while they were still banging on their girlfriends' doors before we could get them out of the building. Without it, at-risk neighborhoods would have to endure much higher levels of incivility, and worse, before peace officers could intervene.

The Whitcomb Court Experiment: Private Streets

While public housing authorities can exclude people from their buildings, the public streets outside are another matter. Some housing projects are entirely self-contained environments - there are no public streets running through. But many, like Whitcomb Court, are simply a set of buildings spread out over the city streets.

That presents a problem - because those who violate a barring order can avoid arrest by simply stepping out of the building, and onto the public street. To solve the problem, Richmond decided to privatize the streets. More precisely, it transferred the streets to the Housing Authority. The result was that Whitcomb Court became a self-contained entity, streets and all. For police purpose, Whitcomb Court became a gated community - the sort people pay millions to live in.

Kevin Hicks was just the sort of person any resident would want excluded from her home - and her streets. He had three previous convictions (two for trespassing, one for damaging property), all stemming from conduct in Whitcomb Court. He'd received and signed a barring notice. As a result, he was on notice that he was to stay away from Whitcomb Court.

Nonetheless, Hicks was subsequently stopped while walking inside the development. At the time, he claimed he was delivering diapers to the mother of one of his children. Because he was violating the barring notice, he was arrested and charged with trespassing.

In the case before the Supreme Court, Hicks challenged the rule that had been applied to him on the ground that it violated the First Amendment. In particular, Hicks argued that the rule could not be applied to him due to the First Amendment doctrine of "overbreadth."

Hicks's First Amendment Challenge: Relying on the Overbreadth Doctrine

Hicks, of course, wasn't engaged in any expressive activity when he was arrested; he was delivering diapers, by his own account, not giving a speech. And ordinarily, you can challenge a law only if it's been impermissibly applied to you. So what was Hicks doing mounting a First Amendment challenge?

The answer is that the overbreadth doctrine is an exception to the usual legal rules about "standing" - who is allowed to challenge a given law. Pursuant to the overbreadth doctrine, if you can show that the rules threaten a "substantial" amount of protected speech, you may challenge those rules in court, even if your own activity would not be protected.

The rule exists principally to promote a robust marketplace of ideas. Expressing yourself, getting busted, and appealing your conviction is all pretty daunting stuff. If that's the likely result of trying to speak out, you may decide it's not worth it, and an unconstitutional law may stand because no one has the nerve to challenge it. So challenges for overbreadth enable courts to review major impairments of protected speech without anyone having to go to jail for speaking out first.

Hicks argued that Whitcomb Court's rules violated the First Amendment because they permitted the residential manager to bar whomever she wished. For instance, the rules appeared to give her the power to block a political demonstration if she didn't agree with the views expressed by the demonstrators.

Hicks himself, of course, was demonstrating nothing during his diaper delivery (except his contempt for his barring notice). But that, again, is the point of the overbreadth doctrine: He didn't have to be, to challenge the rule.

The Supreme Court Got It Right

To prevail, as noted above, Hicks had to show not just that the rule at issue might interfere with someone's speech, someday, but, more than this, that the law threatened to interfere with a substantial amount of protected speech.

That effort was doomed from the start, and rightly so. Nearly every successful overbreadth challenge on the books involved a restriction on speech; in contrast, Whitcomb Court's trespassing rules self-evidently targeted conduct - bad behavior.

Indeed, there was no evidence that the rule had ever been applied to anyone expressing himself or herself. Nor was there any history of telling people at or near Whitcomb Court that they couldn't march, rally, or leaflet because of the rule.

And that's hardly surprising. It wasn't an anti-demonstration or anti-speech rule, after all; it was an anti-trespassing rule, extended to the streets which the city had enclosed within Whitcomb Court.

Thus, what Hicks was really asking the Supreme Court to suspend the laws of trespass until they could be rewritten. That's the consequence of a successful challenge for overbreadth: invalidation of the entire rule until it is more narrowly cast. The doctrine is, as Justice Scalia pointed out in his opinion, a pretty blunt instrument.

And if the blunt instrument had been used, what would have been gained? It's hard to argue that any speech had been "chilled," since, again, there was no evidence that anyone had ever been denied permission to express himself at Whitcomb Court. Indeed, as Justice Scalia pointed out, it remains entirely possible that engaging in constitutionally protected activity would count as a "legitimate business purpose," for which, under the rule, no one would ever be barred.

All of this is somewhat speculative, of course, but overbreadth doctrine is all about speculation: How might a statute be applied? If it not struck down, how many speakers might self-censor as a result? Its speculative nature is just another reason to apply it sparingly.

At bottom, the Justices were properly weighing the theoretical costs to protected speech, against the real costs of interfering with the workings of a system aimed, not at speech, but at conduct - and disruptive conduct at that. One side of the scale was empty: There was no evidence of threatened speech. On the other side of the scale lay weighty concerns of Whitcomb Court residents' security and safety.

Given that this was the way the balance tipped, it was unimaginable that the Supreme Court would tell Richmond's disadvantaged residents that they weren't entitled to the same protections of property and person that most of us take for granted.


Barton Aronson is an attorney in Washington, D.C.. Prior to that, he was a prosecutor in Washington, D.C., and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own. (For the opposite side of the argument, see Julie Hilden's prior column, written before the Hicks decision was issued.)