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Virginia v. Hicks

Supreme Court of the United States · 2003 · Constitutional Law

Constitutional LawFirst AmendmentOverbreadthfacial challengeoverbreadthFirst Amendmenttrespass policypublic housing

Facts

Richmond transferred the streets within Whitcomb Court, a public housing development owned and operated by the RRHA, from city ownership to RRHA ownership and posted signs stating the streets were private property. RRHA adopted a policy authorizing police to give notice to nonresidents who were not employees and could not demonstrate a legitimate business or social purpose for being there, forbidding them from returning and authorizing arrest for trespass if they stayed or returned. Hicks, a nonresident, previously received written notice barring him from Whitcomb Court and was twice denied permission to return by the housing manager. He later returned anyway and was arrested and convicted under the state trespass statute.

Issue

Whether the RRHA's trespass policy was facially invalid under the First Amendment overbreadth doctrine. More specifically, the question was whether the policy, taken as a whole, prohibited a substantial amount of protected speech in relation to its plainly legitimate sweep.

Rule

A law may be facially invalid under the First Amendment overbreadth doctrine only when it punishes a substantial amount of protected speech, judged in relation to the law's plainly legitimate sweep. The overbreadth claimant bears the burden of showing, from the text of the law and from actual fact, that substantial overbreadth exists; rarely, if ever, will an overbreadth challenge succeed against a law not specifically addressed to speech or conduct necessarily associated with speech.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Dayton Housing Cooperative owns a residential complex in Dayton, Ohio, and has a rule allowing officers to bar any nonresident who lacks a legitimate social or business purpose from the property and arrest anyone who returns after notice. Omar Lane, who had previously been barred for repeated late-night loitering, reentered to distribute campaign pamphlets and was convicted under Ohio's general trespass statute.

Omar brings a facial First Amendment overbreadth challenge to the cooperative's policy. What is the strongest reason the challenge should fail?

Explanation. A law is facially invalid for overbreadth only if it reaches a substantial amount of protected speech relative to its plainly legitimate applications. A barment-and-return rule directed at unauthorized entry has many legitimate applications to nonexpressive conduct, and the challenger bears the burden of showing substantial overbreadth from the text and actual facts. The majority rejected the notion that such a generally applicable trespass rule becomes facially invalid merely because some expressive activity might be affected.