Virginia v. Hicks: The United States Supreme Court Holds That the Richmond Redevelopment and Housing Authority's Trespass Policy Is Not Facially Invalid Under the First Amendment's Overbreadth Doctrine

On June 16, 2003, the United States Supreme Court unanimously decided that the Richmond Redevelopment and Housing Authority's (RRHA) trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. In Virginia v. Hicks, No. 02-371, Justice Scalia delivered the opinion for a unanimous Court. The facts are these. The Richmond Redevelopment and Housing Authority (which is a political subdivision of the Commonwealth of Virginia) owns and operates a housing development within the City of Richmond. The development is called Whitcomb Court, and it is for low income residents. Until June 23, 1997, the streets within Whitcomb Court were owned by the City of Richmond. The Richmond City Council decided to privatize these streets, in an effort to combat crime and drug dealing in Whitcomb Court, much of which was committed and conducted by nonresidents. Richmond City Council enacted an ordinance that closed the streets in Whitcomb Court to public use and travel and that abandoned them as streets of the City of Richmond. The city then conveyed the streets by recorded deed to the RRHA. The deed required that RRHA "give the appearance that the closed streets, particularly at the entrances, are no longer public streets and that they are, in fact, private streets." The RRHA posted appropriate signage and enacted a policy authorizing the Richmond police " . . . to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property."

According to the Supreme Court's opinion, "Respondent Kevin Hicks, a nonresident of Whitcomb Court, has been convicted on two prior occasions of trespassing there and once of damaging property there. Those convictions are not at issue in this case. While the property-damage charge was pending, the RRHA gave Hicks written notice barring him from Whitcomb Court, and Hicks signed this notice in the presence of a police officer. Twice after receiving this notice, Hicks asked for permission to return; twice the Whitcomb Court housing manager said 'no.' That did not stop Hicks; in January 1999 he again trespassed at Whitcomb Court and was arrested and convicted under Section 18.2-119." Virginia Code Section 18.2-119 makes it a Class 1 misdemeanor if a person unlawfully goes upon the lands of another after having been forbidden to do so, either orally or in writing.

The Court of Appeals of Virginia held that the streets of Whitcomb Court were a "traditional public forum" and vacated Hicks' conviction on the ground that RRHA's policy violated the First Amendment (36 Va. App. 49, 548 S.E. 2d 249 (2001)). The Virginia Supreme Court did not decide whether the streets of Whitcomb Court were a public forum, but held that the RRHA policy was unconstitutionally overbroad in violation of the First Amendment, and affirmed the Court of Appeals (264 Va. 48, 563 S.E. 2d 674 (2002)).

The United States Supreme Court held that the RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine, and reversed the judgment of the Virginia Supreme Court and remanded the case for further proceedings not inconsistent with this opinion.