holding that trespass policy governing public housing development’s “privatized” public streets was not facially overbroad, because policy applied to all individuals entering the development’s streets and “not just to those who seek to engage in expression,” where Court had assumed arguendo that streets remained public forums and that policy of banning individuals who lacked “‘legitimate business or social purpose for being on the premises’” was unlawful grant of unfettered discretion to housing development’s manager
How later courts described this case
- holding that trespass policy governing public housing development’s “privatized” public streets was not facially overbroad, because policy applied to all individuals entering the development’s streets and “not just to those who seek to engage in expression,” where Court had assumed arguendo that streets remained public forums and that policy of banning individuals who lacked “‘legitimate business or social purpose for being on the premises’” was unlawful grant of unfettered discretion to housing development’s manager
- explaining that the overbreadth remedy is provided to a litigant whose own speech rights are not affected "out of concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech” because "[m]any 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-harming not only themselves but society as a whole”
- explaining that the overbreadth doctrine applies where the challenged law or policy “taken as a whole, is substantially over-broad judged in relation to its plainly legitimate sweep” and that “[t]he overbreadth claimant bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists”
- holding that “all enforcement” of a facially overbroad statute is barred “ ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression’ ” (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. 2908)
Written by the judges who cited it.
The opinion
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. *125 264 Va. 48, 58-60 , 563 S. E. 2d 674, 680-681 (2002) (finding that the “unwritten” portion of the policy, although designed to punish unprotected activities, allowed the housing manager to prohibit protected speech “that she finds personally distasteful or offensive” and “speech that is political or religious in nature”). We, on the other hand, take a broader view of the relevant law, by looking to the potential applications of the entire trespass policy, written and unwritten. Ante, at 121-124. It does not matter here, however, which position one takes on the appropriate “law” whose over-breadth is to be assessed, for there is no substantial over-breadth either way. Regardless of the scope of the law that forms the denominator of the fraction here, the numerator of potential invalid applications is too small to result in a finding of substantial overbreadth. But in other circumstances, the scope of the law chosen for comparison with invalid applications might decide the case. It might be dispositive whether, say, a city’s speech ordinance for a public park is analyzed alone or as one element of the combined policies governing expression in public schoolyards, municipal cemeteries, and the city council chamber. Suffice it to say that today’s decision does not address how to go about identifying the scope of the relevant law for purposes of overbreadth analysis.