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Supreme Court upholds trespass ban in public housing neighborhood

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Supreme Court upholds trespass ban in public housing neighborhood

  • Reversing a decision by the Virginia Supreme Court, the high court rejected a First Amendment challenge to a public housing policy that excludes nonresidents.

June 17, 2003 — The U.S. Supreme Court Monday unanimously rejected a Virginia man’s First Amendment challenge to an anti-trespassing policy in a public housing complex in Richmond, finding that the policy, which prohibits loitering by nonresidents in the crime-plagued neighborhood, does not unconstitutionally chill the exercise of free speech.

Kevin Lamont Hicks was arrested and convicted in 1999 for entering the low-income housing development known as Whitcomb Court. He had been convicted twice before of trespassing there and another time for damaging property in the neighborhood, according to the Supreme Court’s opinion.

Hicks’s 1999 arrest arose from a policy instituted in the development after the Richmond City Council took action in 1997 to privatize the complex to reduce crime. After conveying the neighborhood to the Richmond Redevelopment and Housing Authority, the city council required that a no-trespassing policy be instituted and signs be posted to warn nonresidents of possible arrest and prosecution.

Hicks, whose mother and children live in the complex, allegedly entered the property to deliver diapers. He ignored a prior notice issued to him warning that upon any attempt to enter the premises he would be “subject to arrest by the police.”

As a defense to the conviction, Hicks claimed that the anti-trespassing policy violated the First Amendment, because it had the potential to prevent speech and conduct, such as picketing and distributing leaflets, that is protected by the Constitution.

Hicks’s defense, termed a “facial” attack because it challenged the law on its face and not as it was applied in his case, was accepted by the Virginia Supreme Court, which held in June 2002 that the housing authority’s policy was unconstitutionally overbroad.

The U.S. Supreme Court’s decision reversed that of the Virginia court, holding that the no-trespass policy was not facially invalid.

“The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct — a group that would seemingly far outnumber First Amendment speakers,” wrote Justice Scalia on behalf of the entire Court.

Hicks’s conduct, like most prohibited by the policy, was not an exercise of “free speech” protected by the First Amendment, Scalia wrote.

“Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating),” he wrote.

Anyone whose First Amendment rights have been violated pursuant to the housing authority’s policy would be free to challenge their convictions through “as-applied” litigation, he said.

An “as-applied” legal challenge, unlike a “facial” one, relies on the argument that a law or regulation is faulty only as applied to the conduct at issue in the case, and is not generally unconstitutional.

Ronald Collins, a scholar at the First Amendment Center’s Arlington, Va. office, said the Court’s decision does not have significant implications for the press.

If the defendant had been a reporter entering the same housing complex for constitutionally protected purposes, Collins said, the reporter would probably have brought an as-applied challenge to the law, and the Court’s examination of case would have been different.

With respect to the finding that the housing policy was not overbroad, Collins said the Court in this case passed on an opportunity to expand the doctrine of overbreadth. The case broke little new ground in this area of law, Collins said.

(Virginia v. Hicks) WT

© 2003 The Reporters Committee for Freedom of the Press

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