539 U.S. 113
The Richmond Redevelopment and Housing Authority owns and operates Whitcomb Court, a housing development for low-income residents in Richmond.1 Until June 23, 1997, the city of Richmond owned the streets within the development.2 The city council then enacted an ordinance closing Carmine Street, Bethel Street, Ambrose Street, Deforrest Street, the 2100-2300 Block of Sussex Street and the 2700-2800 Block of Magnolia Street to public use and conveyed them by deed to the Authority, requiring it to make the streets appear private.3 The Authority posted red-and-white signs every 100 feet stating that the streets were private property and that unauthorized persons would be subject to arrest and prosecution.4
It also enacted a trespass policy authorizing police to serve notice on nonresidents lacking a legitimate business or social purpose and to arrest them if they returned after notice.5
Respondent Kevin Hicks, who does not reside at Whitcomb Court, had been convicted twice of trespassing there and once of damaging property.6 While a property-damage charge was pending, the Authority gave Hicks written notice barring him from the property, which he signed in the presence of a police officer.7 Hicks twice asked the housing manager for permission to return but was denied both times.8 In January 1999, Hicks returned to Whitcomb Court and was arrested and convicted under Virginia Code Annotated section 18.2-119 for trespassing after having been forbidden to return.9
At trial, Hicks challenged the Authority's policy as unconstitutionally overbroad and void for vagueness.10 A three-judge panel of the Court of Appeals of Virginia initially rejected his claims, but the en banc court reversed the conviction.11 The Virginia Supreme Court affirmed the en banc decision on the ground that the policy was unconstitutionally overbroad because it vested too much discretion in the housing manager, without deciding whether the streets constituted a traditional public forum.12
The Commonwealth of Virginia petitioned for certiorari, which the United States Supreme Court granted in 2003.13 Hicks had not claimed that his own conduct was protected by the First Amendment, and he did not challenge the trespass statute itself.14 The case reached the Supreme Court after the Virginia Supreme Court invalidated the entire trespass policy.15
Whether the Richmond Redevelopment and Housing Authority’s trespass policy is facially invalid under the First Amendment’s overbreadth doctrine?16
The First Amendment overbreadth doctrine permits facial invalidation of a law only when the challenger demonstrates that the law prohibits a substantial amount of protected speech judged in relation to the statute’s plainly legitimate sweep. Before applying this strong medicine a court must find that any overbreadth is substantial both in an absolute sense and relative to the scope of the law’s legitimate applications.17
No. Hicks failed to carry the burden of showing substantial overbreadth from the text of the policy and from actual fact.18 The written notice-barment rule and the legitimate-business-or-social-purpose rule apply to every person who enters Whitcomb Court, encompassing strollers, loiterers, drug dealers, roller skaters, bird watchers, and soccer players whose conduct lies far outside First Amendment protection.19 Even assuming the unwritten advance-permission requirement for leafleting and demonstrating is invalid, that single component does not render the entire policy substantially overbroad when measured against its many legitimate applications to nonexpressive conduct.20 The policy punishes the nonexpressive act of returning after notice, not speech, and any invalid applications can be addressed through as-applied challenges rather than facial invalidation.21
The Richmond Redevelopment and Housing Authority’s trespass policy is not facially invalid under the First Amendment’s overbreadth doctrine.22
Related opinions on this issue
Justice Souter joined the Court’s opinion but added observations about the scope of the law to be assessed in overbreadth analysis.23 He noted that the Virginia Supreme Court had focused only on the unwritten permission requirement for distributing literature or demonstrating.24 We, on the other hand, take a broader view of the law whose overbreadth is to be assessed, by looking to the potential applications of the entire trespass policy, written and unwritten.25
Souter explained that the result is identical under either approach because the numerator of potential invalid applications remains too small to establish substantial overbreadth.26 He cautioned that the choice of which policies constitute the law to be assessed for overbreadth could prove dispositive in other cases.27