The issue presented in this case is whether the Richmond Redevelopment and Housing Authority's trespass policy is facially invalid under the First Amendment's overbreadth doctrine.
The Richmond Redevelopment and Housing Authority (RRHA) owns and operates a housing development for low-income residents called Whitcomb Court. Until June 23, 1997, the city of Richmond owned the streets within Whitcomb Court. The city council decided, however, to "privatize" these streets in an effort to combat rampant crime and drug dealing in Whitcomb Court—much of it committed and conducted by nonresidents. The council enacted Ordinance No. 97-181-197, which provided, in part:
The city then conveyed these streets by a recorded deed to the RRHA (which is a political subdivision of the Commonwealth of Virginia). This deed required the RRHA to "`give the appearance that the closed street, particularly at the entrances, are no longer public streets and that they are in fact private streets.'" Id., at 95. To this end, the RRHA posted red-and-white signs on each apartment building—and every 100 feet along the streets—of Whitcomb Court, which state: "`NO TRESPASSING[.] PRIVATE PROPERTY[.] YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA. UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION. UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS EXPENSE.'" Pet. for Cert. 5. The RRHA also enacted a policy authorizing the Richmond police
Persons who trespass after being notified not to return are subject to prosecution under Va. Code Ann. § 18.2-119 (1996):
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.
At trial, Hicks maintained that the RRHA's policy limiting access to Whitcomb Court was both unconstitutionally overbroad and void for vagueness. On appeal of his conviction, a three-judge panel of the Court of Appeals of Virginia initially rejected Hicks' contentions, but the en banc Court of Appeals reversed. That court held that the streets of Whitcomb Court were a "traditional public forum," notwithstanding the city ordinance declaring them closed, and vacated Hicks' conviction on the ground that RRHA's policy violated the First Amendment. 36 Va.App. 49, 56, 548 S.E.2d 249, 253 (2001). The Virginia Supreme Court affirmed the en
Hicks does not contend that he was engaged in constitutionally protected conduct when arrested; nor does he challenge the validity of the trespass statute under which he was convicted. Instead he claims that the RRHA policy barring him from Whitcomb Court is overbroad under the First Amendment, and cannot be applied to him—or anyone else.
We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980); Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977); NAACP v. Button, 371 U.S. 415, 433 (1963). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, Dombrowski, supra, at 486-487—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.
As we noted in Broadrick, however, there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law—particularly a law that reflects "legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." 413 U. S., at 615. For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law "overbroad," we have insisted that a law's application to protected speech
Petitioner asks this Court to impose restrictions on "the use of overbreadth standing," limiting the availability of facial overbreadth challenges to those whose own conduct involved some sort of expressive activity. Brief for Petitioner 13, 24-31. The United States as amicus curiae makes the same proposal, Brief for United States as Amicus Curiae 14-17, and urges that Hicks' facial challenge to the RRHA trespass policy "should not have been entertained," id., at 10. The problem with these proposals is that we are reviewing here the decision of a State Supreme Court; our standing rules limit only the federal courts' jurisdiction over certain claims. "[S]tate courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law." ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). Whether Virginia's courts should have entertained this overbreadth challenge is entirely a matter of state law.
This Court may, however, review the Virginia Supreme Court's holding that the RRHA policy violates the First Amendment. We may examine, in particular, whether the claimed overbreadth in the RRHA policy is sufficiently "substantial" to produce facial invalidity. These questions involve not standing, but "the determination of [a] First Amendment challenge on the merits." Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958-959 (1984). Because it is the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question is clear under ASARCO, 490 U. S., at 617-618. The Commonwealth has suffered, as a consequence of the Virginia Supreme Court's "final judgment
The Virginia Supreme Court found that the RRHA policy allowed Gloria S. Rogers, the manager of Whitcomb Court, to exercise "unfettered discretion" in determining who may use the RRHA's property. 264 Va., at 59, 563 S. E. 2d, at 680. Specifically, the court faulted an "unwritten" rule that persons wishing to hand out flyers on the sidewalks of Whitcomb Court need to obtain Rogers' permission. Ibid. This unwritten portion of the RRHA policy, the court concluded, unconstitutionally allows Rogers to "prohibit speech that she finds personally distasteful or offensive." Id., at 60, 563 S. E. 2d, at 681.
Hicks, of course, was not arrested for leafleting or demonstrating without permission. He violated the RRHA's written rule that persons who receive a barment notice must not return to RRHA property. The Virginia Supreme Court, based on its objection to the "unwritten" requirement that demonstrators and leafleters obtain advance permission, declared the entire RRHA trespass policy overbroad and void—including the written rule that those who return after receiving a barment notice are subject to arrest. Whether these provisions are severable is of course a matter of state law, see Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam), and the Virginia Supreme Court has implicitly decided
Hicks has not made such a showing with regard to the RRHA policy taken as a whole—even assuming, arguendo, the unlawfulness of the policy's "unwritten" rule that demonstrating and leafleting at Whitcomb Court require permission from Gloria Rogers. Consider the "no-return" notice served on nonresidents who have no "legitimate business or social purpose" in Whitcomb Court: Hicks has failed to demonstrate that this notice would even be given to anyone engaged in constitutionally protected speech. Gloria Rogers testified that leafleting and demonstrations are permitted at Whitcomb Court, so long as permission is obtained in advance. App. to Pet. for Cert. 100-102. Thus, "legitimate business or social purpose" evidently includes leafleting and demonstrating; otherwise, Rogers would lack authority to permit those activities on RRHA property. Hicks has failed to demonstrate that any First Amendment activity falls outside the "legitimate business or social purpose[s]" that permit entry. As far as appears, until one receives a barment
As for the written provision authorizing the police to arrest those who return to Whitcomb Court after receiving a barment notice: That certainly does not violate the First Amendment as applied to persons whose postnotice entry is not for the purpose of engaging in constitutionally protected speech. And Hicks has not even established that it would violate the First Amendment as applied to persons whose postnotice entry is for that purpose. Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to arrest those who reenter after trespassing and after being warned not to return—regardless of whether, upon their return, they seek to engage in speech. Neither the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment. Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration. Here, as there, it is Hicks' nonexpressive conduct— his entry in violation of the notice-barment rule—not his speech, for which he is punished as a trespasser.
Most importantly, both the notice-barment rule and the "legitimate business or social purpose" rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression. 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. Even assuming invalidity of the "unwritten" rule that requires leafleters and demonstrators to obtain advance permission from Gloria Rogers, Hicks has not shown, based on the record in this
* * *
For these reasons, we reverse the judgment of the Virginia Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE BREYER joins, concurring.
I join the Court's opinion and add this afterword to flag an issue of no consequence here, but one on which a future case might turn. In comparing invalid applications against valid ones for purposes of the First Amendment overbreadth doctrine, the Supreme Court of Virginia apparently assumed that the appropriate focus of the analysis was the "unwritten" element of the housing authority's trespass policy, that is, the requirement that nonresidents distributing literature or demonstrating on the property obtain prior authorization.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M. Carpenter; for the Richmond Tenants Organization et al. by Catherine M. Bishop; for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler and Robert M. O'Neil; and for Watchtower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and Philip Brumley.
A brief of amici curiae was filed for the State of Alabama et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, Erwin O. Switzer III, and Michele L. Jackson, Assistant Attorney General of Alabama, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Charlie J. Crist, Jr., of Florida, Mike Moore of Mississippi, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodríguez of Puerto Rico, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, and Mark L. Shurtleff of Utah.