Amicus Curiae Brief — Virginia v. Hicks

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No. 02-371 be

Jn the Supreme Court of the Gnted States

COMMONWEALTH OF VIRGINIA, PETITIONER

KEVIN LAMONT HICKS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

ROBERT D. MCCALLUM., JR.

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistants to the Solicitor

General

MARC OSBORNE

MICHAELJAY SINGER

STEPHANIE R. MARCUS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a defendant whose non-expressive conduct

violates a regulation limiting access to government property

may bring a facial overbreadth challenge to that regulation

on the ground that its application to expressive conduct

would violate the First Amendment.

2. Whether the degree of discretion that officials may

exercise to permit individuals to enter government property

in order to engage in expressive conduct varies depending on

whether that property is a public forum.

(I)

TABLE OF CONTENTS

Interest of the United States ..........cccccsssrseneneneneenenenensnanenenes

EAC OTOT 60.iceccececececscescnsoreseressreeeesesesosossesosesessnensossnssssssssssosssoseseseess

Summary of argument .........--s0-vecssessseesneenesneesnecsnesnsnnnenneesnennnennes

Argument:

I. Respondent's facial challenge to the Housing

Authority's trepass policy should not have been

CTROTRIROD ..<ecercccccccrrscerseecseseresesosesesscsssosesconscsnsconesssesseeses

A. The overbreadth doctrine is a limited excep-

tion to the general rule permitting only

as-applied constitutional adjudication .................

B. An overbreadth challenge may not be

brought by one not engaged in expressive

activity subject to the challenged regula-

CAGTD ccccescecesecscscsssscssnssssessesnsensnessnssssnssnssssassessenneseeseeneees

C. Facial overbreadth challenges may not be

brought to laws of general applicability ..............

D. The Housing Authority’s trespass policy

is not in any event substantially over-

II. Even if respondent may bring this overbreadth

challenge, the Virginia Supreme Court erred in

determining that the Housing Authority’s tres-

pass policy violates the First Amendment ................

A. The constitutionality of the regulation in

this case likely turns on the forum classification

of the government property at issue ................+.

B. The Virginia Supreme Court erred because

it failed to decide whether the property was

@ public FOrUM ........--seeesseesseesneesnesseessnessneensnecnnessneennes

CORNBIOR 6.cccecesececescoccccccesesesessssessssssessssessonssssssssosssssssesessssssscssssoeees

(III)

TABLE OF AUTHORITIES

Cases: Page

Adderley v. Florida, 385 U.S. 39 (1966) .......ceseseseeneens 25

Ashcroft v. ACLU, 535 U.S. 564 (2002) ........sseseenereenens 15

Ashcroft v. Free Speech Coalition, 535 U.S. 234

Ee 14

Barrows v. Jackson, 346 U.S. 249 (1958) .......cccccccceeseeeeeees 12

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) «0.0... 14

Board of Airport Comm'rs v. Jews for Jesus, Inc.,

DN EEE 15

Board of Trs. of the State Univ. of New York v. Fox,

GBB US. GBD (IGBD) ..c2ecccccerecsercesccseccscesccsecssossosenscnscsssnesssonees 16

Broadrick v. Oklahoma, 413 US. 601 (1973) .........000+ 12, 13,

14, 15, 22

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

|_| on 15

City of Chicago v. Morales, 527 U.S. 41 (1999) ........000000 ll

City Council v. Taxpayers for Vincent, 466 U.S.

TBD (1GBE) .2.2.c0ceceseecaseseseesssesesesessnsssnsesessssssnssesessesenensesesensnsssness 17

City of Dallas ¥. Stanglin, 490 U.S. 19 (1989) ........00000+ 11

City of Lakewood v. Plain Dealer Publ’g Co.,

GBB UB. TOD (BGIID acceccceccccecsscserensccscszsscsnssnsssscssnsensnsensesess 15, 18,

: 19, 20, 21, 24

Cornelius v. NAACP Legal Def. & Educ. Fund,

Inc., 473 U.S. 788 (1985) ...........c.ccesvsrerernensessssensesensesassecosees 7, 23

Cox v. Lowisiana, 379 U.S. 536 (1965) ........cccsecceeeneeeeneeee 20

Daniel v. City of Tampa, 38 F.3d 546 (11th Cir.

1994), cert. denied, 515 U.S. 1132 (1995) .......sesesvereees 25-26

Department of Hous. & Urban Dev. v. Rucker,

535 U.S. 125 (2002) 7 2

Edwards v. South Carolina, 372 U.S. 229 (1963) ............ 20

First Unitarian Church of Salt Lake City v. Salt

Lake City Corp., 308 F.3d 1114 (10th Cir. 2002) ......... 27, 29

Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) ........ . 14,19,24

Frisby v. Schultz, 487 U.S. 474 (1988) ........sssessessessessesnees 23

Cases—Continued: Page

Gooding v. Wilson, 405 U.S. 518 (1972) .........eeseseeseees 13, 15

Greer v. Spock, 424 U.S: 828 (1976) ..........csssesessesneenees 1, 26-27

Hale v. Department of Energy, 806 F.2d 910

CN 24

Hawkins v. City & County of Denver, 170 F.3d 1281

(10th Cir.), cert. denied, 528 U.S. 871 (1999) ............ 27-28, 29

International Society for Krishna Consciousness, Inc.

V. Lee, 505 U.S. 672 (1992) .......ceccececeeseressenssereensnsnnensnseees 28, 29

Kunz v. New York, 340 U.S. 290 (1951) ..........ccccccceeeeeenenees 24

Los Angeles Police Dep't v. United Reporting

Publ’g Corp., 528 U.S. 32 (1999) ........-seecesseseesnessneennennennens 13

Lovell v. City of Griffin, 303 U.S. 444 (1938) ........00000: 15, 24

Marsh v. Alabama, 326 U.S. 501 (1946) ........:cccceeeeeees 21

New York v. Ferber, 458 U.S. 747 (1982) ............ 13, 14, 15, 22

Niemotko v. Maryland, 340 U.S. 268 (1951)... 24

Osborne v. Ohio, 495 U.S. 103 (1990) ..........cceeseseeneneneeennens 14

Parker v. Levy, 417 U.S. 733 (1974) ......cessesesesnesneenennennnnes 14

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

460 U.S. 37 (1983) ....

Roberts v. United States Jaycees, 468 U.S. 609 (1984) ... 20

Shuttlesworth v. City of Birmingham, 394 U.S. 147

(1969) ..... cseateanaitasasnasiiemmmanasamansenammmmmnmnmimmananitet 15, 24

Thomas v. Chicago Park Dist., 534 U.S. 316 (2002)... 15, 19

Thornhill v. Alabama, 310 U.S. 88 (1940) .......-cceceseeees 15

United States Postal Serv. v. Council of Green-

burgh Civic Ass’ns, 453 U.S. 114 (1981) .......-.---0ee00 1, 24, 25

United States v. Albertini, 472 U.S. 675 (1985) ................ 27

United States v. Grace, 461 U.S. 171 (1983) .....ssssseeess 1, 10,

25, 28, 29

United States v. Kokinda, 497 U.S. 720 (1990) ..........++ 1, 23,

26, 27, 29

United States v. Raines, 362 U.S. 17 (1960) 13

Watchtower Bible & Tract Soc’y of New York, Inc. v.

Village of Stratton, 536 U.S. 150 (2002)... 14

Constitution, statutes and regulation:

I, CITE © ccenencnsscssreerenetseneseenenmmieemmanees

es EUIIET III secnsintcccscnetrannnttinesnntnebnictsnionianuaniatainatinnn

Va. Code Ann. § 18.2-119 (Michie 2002) .0..........ccccsesseeeenenes

24 C.F.R. 966.4(d)(1)

Miscellaneous:

The First Amendment Overbreadth Doctrine,

ES ee

Mode! Penal Code (1980)

In the Supreme Court of the Gnited States

No. 02-371

COMMONWEALTH OF VIRGINIA, PETITIONER

VU.

KEVIN LAMONT HICKS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States has ownership and other interests in a

wide variety of types of property and therefore has an inter-

est in the substantive and procedural standards that govern

challenges to the regulation of public activities, including

expressive activities, on such property. See, e.g., United

States v. Kokinda, 497 U.S. 720 (1990) (post office sidewalk);

United States v. Grace, 461 U.S. 171 (1983) (Supreme Court

grounds); United States Postal Serv. v. Council of Green-

burgh Civic Ass’ns, 453 U.S. 114 (1981) (postal letterbox),

Greer v. Spock, 424 U.S. 828 (1976) (military base). In addi-

tion, the United States assists public housing agencies in

financing the development, acquisition, and operation of low-

income housing projects. 42 U.S.C. 1437 et seg. Accordingly,

the United States has a substantial interest in the ability of

local housing agencies to take steps to ensure tenants’ safe

use and enjoyment of the housing premises, as well as the

ability of the tenants to have reasonable accommodation

made for their guests. See 24 C.F.R. 966.4(d)(1); see also

(1)

Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125

(2002).

STATEMENT

1. This case involves Whitcomb Court, a troubled public

housing development in Richmond, Virginia. The develop-

ment had been described as an “open-air drug market,” and

“(t]he majority of persons who had been arrested for drug

crimes at the Whitcomb Court housing development were

individuals who did not reside there.” Pet. App. 3. In an

effort to address those problems, the Richmond Redevelop-

ment and Housing Authority, a political subdivision of the

Commonwealth of Virginia and the owner and operator of

Whitcomb Court, sought to limit access to the property. In

1997, the City of Richmond, which owned the streets located

within Whitcomb Court, passed an ordinance declaring that

the streets in the development were “closed to public use

and travel” and conveyed title to the streets to the Housing

Authority. Jbid. The deed conveying title required the

Housing Authority to “make provisions to give the appear-

ance that the closed streets, particularly at the entrances,

are no longer public streets[.]” bid.

The Housing Authority accordingly placed signs on the

housing development’s buildings and every 100 feet along

the streets, stating, inter alia, “NO TRESPASSING,”

“YOU ARE NOW ENTERING PRIVATE PROPERTY

AND STREETS OWNED BY RRHA,” and “UN-

AUTHORIZED PERSONS WILL BE SUBJECT TO

ARREST AND PROSECUTION.” Pet. App. 4. At the

same time, the Housing Authority authorized the Richmond

Police to serve notice on any unauthorized person on Hous-

ing Authority property forbidding that person to return to

such property if “such person is not a resident, employee, or

such person cannot demonstrate a legitimate business or

social purpose for being on the premises.” Jd. at 98. In

addition, the Housing Authority gave the police the author-

ity to arrest any person who, “having been duly notified,

either stays upon or returns to” Housing Authority prop-

erty. Id. at 98-99."

According to the Supreme Court of Virginia, under the

Housing Authority’s policy, “individuals who sought access

to the Housing Authority’s property, including the streets,

needed to obtain * * * permission for such access” from

Gloria Rogers, the manager of Whitcomb Court. Pet. App. 5.

She “was required to determine whether a person can

demonstrate a legitimate business or social purpose to use

“the Housing Authority’s property * * * including the

streets.” Jbid. In particular, a person who wanted “to dis-

seminate materials or participate in an activity on the prop-

erty” had to obtain permission from Rogers. Jbid. If a

person requested access to the property from Rogers, she

sometimes “referred such request to a ‘community council’

which met with ‘the [Whitcomb Court] Board and the resi-

dents.” Jbid. In addition, “if an individual submitted a

request to distribute flyers and the request was not ‘routine,’

she referred that request to the Housing Authority’s direc-

tor of housing operations for resolution.” [bid. Aside from

the general “legitimate business or social purpose” guideline,

1 Under Virginia's notice-trespass statute, Va. Code Ann. § 18.2-119

(Michie 2002), a person who enters the property of another after having

received notice not to do so is guilty of the misdemeanor of trespassing.

The statute provides:

If any person without authority of law goes upon or remains upon the

lands, buildings or premises of another, * * * after having been

forbidden to do so, either orally or in writing, by the owner, lessee,

custodian or other person lawfully in charge thereof, or after having

been forbidden to do so by a sign or signs posted by such persons

* * * at a place or places where it or they may be reasonably seen

* * * he shall be guilty of a Class 1 misdemeanor.

See Model Penal Code § 221.2, emt. 1 (1980) (“The common thread running

through [criminal trespass statutes] is the element of unwanted intrusion,

usually coupled with some sort of notice to would-be intruders that they

may not enter.”).

there were no written policies or procedures governing

“decisions regarding who may distribute materials or par-

ticipate in activities on the Housing Authority’s property.”

Ibid.

2. On January 20, 1999, respondent was arrested for

trespassing on the sidewalk on Bethel Street, a street that is

entirely encompassed within Whitcomb Court and passes

through the middle of the property. Pet. App. 6, 32, 97.

Respondent’s mother, his baby, and the baby’s mother live

at Whitcomb Court. Jd. at 32. When he was arrested, re-

spondent stated that he was delivering diapers to his baby.

Ibid. Respondent nad earlier been convicted of trespassing

on Whitcomb Court property on February 10, 1998, and June

26, 1998, and he had been convicted of damaging property on

Whitcomb Court on April 27, 1998. Jd. at 6,32. On April 14,

1998, before his second conviction for trespassing and his

conviction for damaging property, Rogers delivered him a

letter informing him that “effective immediately you are not

welcome” on Housing Authority property, that “you are not

to trespass on [Housing Authority] property,” and that “(if

you are seen or caught on the premises, you will be subject

to arrest by the police.” Jd. at 107.

Respondent was charged with violating Virginia’s notice-

trespassing misdemeanor statute. See note 1, supra. He was

tried and convicted on that charge in the City of Richmond

General District Court. Pet. App. 2. He appealed his con-

viction to the Circuit Court of the City of Richmond, where

he was again convicted after a bench trial. Jd. at 82-85.

3. After a panel of the intermediate state appellate court

ruled that his conviction should be affirmed, Pet. App. 59-81,

the en banc court reversed by a 6-5 vote, id. at 28-58.

The majority stated that “(t]he critical issue is whether

the ‘privatized’ streets and sidewalks are public and as such

are a ‘traditional public forum,’ or whether they are ‘private’

and, thereby, a ‘nonpublic forum.’” Pet. App. 34. The court

held that the city “is not permitted to transform the public

streets and sidewalks in Whitcomb Court into private, non-

public property simply by passing an ordinance declaring

them closed, conveying them to another governmental

entity, [the Housing Authority], and placing signs along the

streets.” /d. at 38. Having concluded that the streets in

Whitcomb Court remained a public forum, the court held

that the restrictions on access were not narrowly tailored to

serve the interest in crime control. /d. at 41.

The five dissenting judges would have barred respondent

from raising this “untimely and improper collateral attack on

his barment status,” because he had not taken advantage of

judicial opportunities at the time of his prior trespassing

convictions and administrative opportunities since that time

to challenge his barment. Pet. App. 45. They also would

have held that respondent’s First Amendment overbreadth

challenge cannot succeed, because the constitutional reach of

the trespass policy “dwarfs its arguably impermissible appli-

cations.” Jd. at 49. The dissent also argued that the street

on which respondent was arrested was no longer a tradi-

tional public forum, because it had been deedex. io the Hous-

ing Authority, the Housing Authority had posted no-tres-

passing signs, and the property had been treated as private

for at least a year before respondent’s arrest. Jd. at 52. In

the dissent’s view, “there is absolutely no evidence that the

streets and/or sidewalks of the Whitcomb Court property

remained open to a public flow of traffic.” bid. The dissent

concluded that “any potential interference with an indivi-

dual’s right of expression * * * is reasonable, limited and

justified to achieve the legitimate purpose of protecting

[Whitcomb Court] residents from crime.” Jd. at 54.

4. a. The Supreme Court of Virginia affirmed. The court

framed “(t]he narrow issue * * * jin this appeal” as

“whether a redevelopment and housing authority’s trespass

policy is overly broad and thereby violates the First and

Fourteenth Amendments.” Pet. App. 2. The court stated

that “in the context of a First Amendment challenge, a liti-

gant may challenge government action granting government

officials standardless discretion even if that government

action as applied to the litigant is constitutionally per-

missible.” Jd. at 9.

In this case, the Court held that “[e]ven though the Hou-

sing Authority’s trespass policy * * * is designed to punish

activities that are not protected by the First Amendment,

the policy also prohibits speech and conduct that are clearly

protected by the First Amendment.” Pet. App. 13. In

particular, the court observed that Rogers, the manager of

the property, “has unfettered discretion to determine who

ean distribute literature” at the project and that “a non-

resident of Whitcomb Court can only distribute such litera-

ture if that non-resident obtains authorization from Rogers.”

Id. at 14-15. The court stated that “Rogers has the

unfettered discretion to determine not only who has a right

to speak on the Housing Authority’s property, but she may

prohibit speech that she finds personally distasteful or

offensive even though such speech may be protected by the

First Amendment.” /d. at 16. On that basis, the court con-

cluded “that the Housing Authority’s trespass policy is

overly broad and that [respondent] may assert this issue in

this criminal prosecution.” /d. at 17.

The court recognized that “the Court of Appeals decided

this case on the basis that the Housing Authority’s private

streets constitute a public forum and that the Housing

Authority’s efforts to regulate speech in that forum con-

travene the First Amendment.” Pet. App. 16. But, the court

stated, in light of what it characterized as its “limited

holding,” it “need not resolve this issue” but would instead

“reserve consideration of this issue for another day.” bid.

b. Justice Kinser, joined by one other member of the

court, dissented. In his view, the court erred in holding that

;

’

respondent could bring this facial challenge. He pointed out

that this Court’s cases cited by the Virginia Supreme Court

in support of its conclusion that respondent’s facial challenge

is permissible each “addressed a statute requiring a license

or permit to engage in First Amendment activity.” Pet.

App. 18. But “[bJecause the Authority's trespass policy does

not directly regulate activity protected by the First Amend-

ment, but instead limits access to government property,

* * * these cases are not persuasive authority to justify the

defendant’s facial challenge to the trespass policy.” Jd. at 19.

Because the Housing Authority’s trespass policy at issue in

this case “is directed at conduct, namely trespassing, and not

pure speech,” id. at 21, the dissent explained that it must be

shown to be “substantially overbroad” before it can be

attacked through a facial challenge, id. at 22. The dissent

concluded that, because the policy’s legitimate sweep in

regulating trespassing on government property is much

greater than any impermissible applications, respondent

could not make such a showing. /bid.

The dissent also concluded that “if a facial challenge is to

be allowed in this case, it should be analyzed under the

framework established by the Supreme Court for deciding

when an individual’s First Amendment rights have been

violated by a denial of access to government property.” Pet.

App. 23. In particular, “the nature of the forum must * * *

be identified, ‘because the extent to which the Government

may limit access depends on whether the forum is public or

nonpublic.’” /bid. (quoting Cornelius v. NAACP Legal Def.

& Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).

SUMMARY OF ARGUMENT

I. Respondent was not engaged in expressive activity

when he violated the Housing Authority’s trespass policy.

Accordingly, respondent’s First Amendment challenge to

that policy may proceed only as an overbreadth challenge—

i.e, only on the ground that the policy is unenforceable

against him because it would be unconstitutional as applied

to others who are engaged in expressive activity. Allowing

such third-party challenges imposes serious costs. It re-

stricts society’s ability to enforce its laws against persons

whose conduct is constitutionally unprotected. It also

requires courts to decide constitutional issues in an entirely

abstract context. And it may lead to the premature and

unnecessary resolution of serious constitutional questions.

Although the overbreadth doctrine permits First Amend-

ment challenges to be brought to substantially overbroad

statutes in limited circumstances to avoid a chill to the ex-

pressive rights of parties not before the court, the doctrine’s

application is limited. It should not be extended to the

circumstances of this case, for two related reasons.

First, all of this Court’s overbreadth cases have involved

parties who themselves had engaged—or sought to engage

—in expressive activity. The doctrine ought not be

extended farther, to parties like respondent, who have not

engaged in expressive activity subject to the regulation

under attack. The costs of a challenge like respondent’s are

more substantial than in an ordinary overbreadth case; a

challenge like respondent’s, if successful, will disable society

from enforcing its laws even against those engaged in no

expressive activity at all. It also may easily result in courts

prematurely and perhaps unnecessarily deciding constitu-

tional questions. In this case, for example, there is no reason

to believe that the challenged trespass policy has any impact

at all on expressive activity or that anyone seeking to

engage in such activity on Whitcomb Court property has

ever been denied permission to do so. Accordingly, an

overbreadth challenge to a regulation by a party who has not

himself engaged in expressive activity subject to the

regulation should not be entertained.

Second, this Court has permitted overbreadth challenges

to statutes that regulate speech or conduct closely related to

speech, but it has noted that the doctrine’s rationales would

not permit overbreadth challenges to laws of more general

applicability that are in no way directed toward speech or to

conduct closely related to speech. Such laws pose a lesser

danger to First Amendment rights, and they thus do not call

for the “strong medicine” of overbreadth challenges. Be-

cause the Housing Authority’s trespass policy sweeps far

beyond speech or speech-related conduct and was adopted

for reasons having nothing to do with suppression of speech,

it should not be analyzed for overbreadth. It would be

particularly unwarranted to invalidate the trespass policy on

overbreadth grounds to the extent that the policy regulates

entirely nonexpressive conduct. For similar reasons, the

policy would not in any event be substantially overbroad,

even if an overbreadth challenge could otherwise be main-

tained in this case.

Il. If the Court holds that respondent’s overbreadth

challenge may be entertained, the decision of the Virginia

Supreme Court should nonetheless be reversed. That court

held that the Housing Authority’s trespass policy violates

the First Amendment because it vests too much discretion in

the manager of Whitcomb Court to determine whether those

engaged in expressive activity will be permitted on the prop-

erty. The court, however, erred in reaching that conclusion

without determining whether the Whitcomb Court side-

walks, which once were ordinary city sidewalks, retain their

character as a public forum.

If the property at issue remains a public forum, then the

vesting of discretion in the manager presents serious First

Amendment problems. But if the sidewalks of Whitcomb

Court are not a public forum, then the government has

substantially broader ability to regulate expression on it.

Insofar as Whitcomb Court has become an area not generally

open to the public, the government may vest discretion in a

gatekeeper to permit entry only to those with legitimate

purposes for being there, just as it may do the same at a

government-owned military base or office building. Nor

does the fact that the streets of Whitcomb Court was at one

time a public forum demand the conclusion that it retains

that status; property that once was a public forum may

surely be converted to another use.

United States v. Grace, 461 U.S. 171 (1983), establishes

that merely enacting a law declaring speech off-limits in

what was a public forum is insufficient to convert a public

forum to another use. But this Court has not addressed

what more is required before a government-owned property

that was a traditional public forum has been converted to

another use, such that the rules restricting government

regulation in a public forum are no longer applicable. The

Court ought not address that question in the first instance,

without the benefit of a decision on the issue by the court

below and on the thin record in this case. If the Court holds

that respondent may bring a First Amendment overbreadth

challenge in this case, therefore, the Court should reverse

the decision of the Virginia Supreme Court and remand for

further proceedings, so that the question whether the street

on which respondent was arrested was a public forum may

be addressed in the first instance by the courts below and

with whatever furter factual development is necessary.

ARGUMENT

I. RESPONDENT’S FACIAL CHALLENGE TO THE

HOUSING AUTHORITY’S TRESPASS POLICY

SHOULD NOT HAVE BEEN ENTERTAINED

At the time he was arrested, respondent was walking on a

sidewalk located on Housing Authority premises. He stated

that he was delivering diapers to his baby, who lived at the

development. Pet. App. 32. He did not claim—and he has

never claimed—that he was on the premises for any expres-

sive purpose that would trigger First Amendment protec-

tion. He did not claim that he was handing out leaflets, that

he was organizing a demonstration, or that he was in any

way trying to get a message across to the public.” Accord-

ingly, respondent’s conduct was not protected by the First

Amendment’s guarantee of freedom of expression, and the

Housing Authority’s trespass policy as applied to him—i.e.,

its determination that it did not want to permit him to

trespass on its property—did not intrude on any of his own

First Amendment rights. Respondent’s First Amendment

challenge to the trespass policy may thus proceed, if at all,

only as an overbreadth challenge—i.e., only on the ground

tha. the claimed unconstitutionality of the policy as it might

be applied to others, who are engaged in First Amendment

protected activity, is sufficient to make the policy unen-

forceable against him.

Such an overbreadth challenge does not lie in this case, for

two related reasons. First, this Court has never held that a

First Amendment overbreadth challenge may be brought by

a party not engaging in expressive activity subject to the

challenged regulation, and it ought not extend the doctrine

now to permit such challenges. Second, this Court has cau-

tioned against permitting First Amendment facial challenges

to laws of general applicability that extend to conduct with

little connection to speech. The Housing Authority’s tres-

pass policy is such a law, and respondent’s facial overbreadth

challenge to it accordingly should not be entertained.

2 Even had respondent alleged that he wanted to enter Whitcomb

Court in order to carry on a conversation with someone, a policy that pro-

hibited trespassing for that purpose would “not have a sufficiently sub-

stantial impact on conduct protected by the First Amendment to render it

unconstitutional.” City of Chicago v. Morales, 527 U.S. 41, 52-53 (1999)

(Opinion of Stevens, J.); see City of Dallas v. Stanglin, 490 U.S. 19, 23-25

(1989).

A. The Overbreadth Doctrine Is A Limited Exception To

The General Rule Permitting Only As-Applied Con-

stitutional Adjudication

1. The traditional rule is that “a person to whom a

statute may constitutionally be applied will not be heard to

challenge that statute on the ground that it may conceivably

be applied unconstitutionally to others, in other situations

not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601,

610 (1973); see Barrows v. Jackson, 346 U.S. 249, 256 (1953)

(“[E]ven though a party will suffer a direct substantial

injury from application of a statute, he cannot challenge its

constitutionality unless he can show that he is within the

class whose constitutional rights are allegedly violated.”).

That rule is based on several rationales.

First, as-applied adjudication ensures that society’s ability

to enforce its laws is curtailed only where doing so would

violate a constitutional command that the defendant’s con-

duct must be protected. By contrast, overbreadth chal-

lenges eliminate society’s ability to enforce laws even in

cases in which the defendant’s conduct is unprotected. See

Broadrick, 413 U.S. at 615 (a holding that a law violates the

First Amendment in an overbreadth case “prohibit[s] a

State from enforcing the statute against conduct that is ad-

mittedly within its power to proscribe”). That curtailment of

society’s ability to protect itself from “harmful, constitu-

tionally unprotected conduct,” ibid., is significant, and a

court should not be “so ready to frustrate the expressed will

of Congress or that of the state legislatures.” Barrows, 346

U.S. at 256-257.

Second, while an as-applied challenge presents a court

with a concrete factual setting in which to adjudicate the

question whether the challenged regulation is genuinely

inconsistent with the First Amendment, an overbreadth

challenge deprives the court of such a concrete factual set-

ting. Where a court can “focus[] on the factual situation”

before it, it has the opportunity to address “ ‘flesh-and-blood’

legal problems with data ‘relevant and adequate to an in-

formed judgment.’” Los Angeles Police Dep't v. United Re-

porting Publ’g Corp., 528 U.S. 32, 39 (1999) (quoting New

York v. Ferber, 458 U.S. 747, 768 (1982)). But where the

court must “consider every conceivable situation which

might possibly arise in the application of complex and com-

prehensive legislation,” Barrows, 346 U.S. at 256, reliable

judgment becomes much more difficult.

Third, while an as-applied challenge requires a court to

pass on a constitutional question because doing so is neces-

sary to vindicate the Constitution with respect to the par-

ticular party before the court, overbreadth challenges can

lead the Court to “unnecessary pronouncement on constitu-

tional issues.” United States v. Raines, 362 U.S. 17, 22

(1960). The court must address the constitutional challenge,

even if the assertedly unconstitutional application of the

statute on which the challenge is based never in fact arises

or arises in a context in which different or narrower issues

are presented.

2. Notwithstanding the above costs, because “the First

Amendment needs breathing space,” Broadrick, 413 U.S. at

611, overbreadth challenges under the First Amendment

have been “deemed necessary because persons whose ex-

pression is constitutionally protected may well refrain from

exercising their rights for fear of criminal sanctions provided

by a statute susceptible of application to protected ex-

pression.” Gooding v. Wilson, 405 U.S. 518, 520-521 (1972).

In essence, the party before the court, whose conduct may

be 1egulated consistently with the First Amendment, is per-

mitted to represent the interests of third parties not before

the court whose speech would be chilled by the prospect that

the regulation would be applied to them.

Nonetheless, the Court has emphasized that “{a}pplication

of the overbreadth doctrine * * * is, manifestly, strong

medicine” that “has been employed by the Court sparingly

and only as a last resort.” Broadrick, 413 U.S. at 613. See

Ferber, 458 U.S. at 769. In light of its heavy costs, the Court

has restricted First Amendment overbreadth challenges in a

number of respects. The Court has held that overbreadth

challenges may succeed only on a showing that the law’s

overbreadth is substantial. “(T]he scope of the statute does

not render it unconstitutional unless its overbreadth is not

only ‘real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.’” Osborne v. Ohio, 495

U.S. 103, 112 (1990) (quoting Broadrick, 413 U.S. at 615).

“Even where a statute at its margins infringes on protected

expression, ‘facial invalidation is inappropriate if the ‘re-

mainder of the statute . . . covers a whole range of easily

identifiable and constitutionally proscribable * * *

conduct.’” Jbid. (quoting Ferber, 458 U.S. at 770 n.25). The

Court has also held that the First Amendment overbreadth

doctrine does not apply to commercial speech, see Bates v.

State Bar of Ariz., 433 U.S. 350, 380-381 (1977), which is not

easily chilled, and in the military context, see Parker v.

Levy, 417 U.S. 733, 760-761 (1974).

B. An Overbreadth Challenge May Not Be Brought By One

Not Engaged In Expressive Activity Subject To The

Challenged Regulation

All of this Court’s overbreadth cases have involved

parties who engaged in, or sought to engage in, expressive

activity subject to the challenged regulation. E.g., Watch-

tower Bible & Tract Soc’y of New York, Inc. v. Village of

Stratton, 536 U.S. 150 (2002) (restriction on door-to-door

canvassing challenged by religious proselytizers); Ashcroft v.

Free Speech Coalition, 535 U.S. 234 (2002) (restriction on

virtual child pornography challenged by parties who create

erotic and nudist works); Forsyth County v. Nationalist

Movement, 505 U.S. 123 (1992) (permit for private use of

public property challenged by group that wanted to hold

demonstration); City of Lakewood v. Plain Dealer Publish-

ing Co., 486 U.S. 750 (1988) (newsrack licensing scheme chal-

lenged by newspaper); Board of Airport Comm'rs v. Jews

for Jesus, Inc., 482 U.S. 569 (1987) (ban of all “First Amend-

ment activities” challenged by party seeking to distribute

religious literature); Gooding v. Wilson, 405 U.S. 518 (1972)

(law prohibiting “opprobrious words or abusive language,

tending to cause a breach of the peace” challenged by person

convicted for using such language) (citation omitted);

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153

(1969) (parade permit ordinance challenged by demonstra-

tors); Thornhill v. Alabama, 310 U.S. 88, 97 (1940) (statutes

prohibiting loitering with purpose to influence and picketing

challenged by union picketer); Lovell v. City of Griffin, 303

U.S. 444 (1938) (licensing scheme for distribution of litera-

ture challenged by person distributing religious pamphlets).”

The rule permitting overbreadth should not be extended to

cases, such as this one, in which the party bringing the

challenge has not engaged in expressive activity subject to

the challenged regulation.

The costs of permitting such a challenge are high. If an

individual who has not engaged in expressive activity sub-

ject to a regulation is permitted to bring an overbreadth

challenge to that regulation, the damage to society’s legiti-

mate interest in enforcing its laws is even greater than in the

3 Even the cases in which this Court has ultimately rejected over-

breadth challenges have involved parties engaged in expressive activity.

E.g., Asheroft v. ACLU, 535 U.S. 564 (2002) (regulation of sexually explicit

material on Internet challenged by organizations that maintain their own

web sites); Thomas v. Chicago Park District, 534 U.S. 316 (2002) (permit

scheme for gatherings in park challenged by parties seeking to hold

political rallies); Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)

(obscenity law challenged by booksellers and movie distributors); New

York v. Ferber, 458 U.S. 747 (1982) (law prohibiting child pornography

challenged by proprietor of bookstore); Broadrick v. Oklahoma, 413 U.S.

601 (1973) (statute regulating government employees’ political activity

challenged by employees who had engaged in such activity).

ordinary overbreadth case, in which the challenger was en-

gaged in expressive activity. For if the overbreadth doc-

trine is widened to permit challenges like the one in this

case, enforcement of the challenged law is precluded not only

against those engaged in expressive conduct, but also

against the necessarily even wider category of individuals

who have no claim to expression at all.4 In this case, for

example, if respondent's challenge is permitted, the Housing

Authority’s trespass policy could be invalidated entirely, so

that the drug dealers, their customers, and other criminals

who were the original targets of that policy could not be pro-

hibited from entering the grounds of Whitcomb Court. That

result would follow, despite the fact that none of those indivi-

duals has any claim to being engaged in expressive conduct

and no personal First Amendment interest to protect.

The risk of premature or unnecessary constitutional adju-

dication, which is a cost of any overbreadth challenge, is

increased if the party bringing the challenge has not himself

engaged in expressive activity. Although respondent can

hypothesize about the existence of speakers whose exercise

of their First Amendment rights would allegedly be chilled

by the Housing Authority’s trespass policy, the record in

this case does not clearly disclose that any individual who

wanted to enter Whitcomb Court to engage in expressive

activity—protected by the First Amendment or not—has

4 Similarly, where a party’s expressive activity was subject to the

challenged regulation, there is always the possibility of a narrowing con-

struction that would carve out certain expressive activity from the reach

of that regulation, or a partial invalidation. Cf. Board of Trs. of the State

Univ. of New York v. Fox, 492 U.S. 469, 484-485 (1989) (as-applied chal-

lenges to a restriction of speech should ordinarily be adjudicated before

proceeding to an overbreadth analysis). But a party who has not engaged

in expressive activity and is permitted to bring an overbreadth challenge

has no such incentive to find a narrowing construction; such a party is

likely to argue for the broadest possible invalidation of the challenged

regulation, to ensure that it cannot be applied even to his, non-expressive

conduct.

ever been, or would ever be, denied permission to do so.°

See City Council v. Taxpayers for Vincent, 466 U.S. 789, 801

(1984) (“[T]here must be a realistic danger that the statute

itself will significantly compromise recognized First Amend-

ment protections of parties not before the Court for it to be

facially challenged on overbreadth grounds.”). Accordingly

cases like this one pose the risk that the Court must decide

substantial constitutional questions under the First Amend-

ment whose resolution is, in fact, wholly unnecessary. In

light of the substantial costs of entertaining First Amend-

ment overbreadth challenges to regulations by individuals

not engaging in expressive activity subject to those regu-

lations, this Court ought not extend the overbreadth

doctrine to permit such challenges.

C. Facial Overbreadth Challenges May Not Be Brought To

Laws Of General Applicability

There is a second, related reason why respondent’s over-

breadth challenge should not be entertained. Virtually all of

this Court’s overbreadth cases have involved challenges to

laws that either regulate speech directly or regulate conduct

closely associated with speech. See pp. 14-15, supra (citing

® When asked whether she has given permission to people who w

to enter Whitcomb Court “to pass out flyers for womat ag P- te we

related meetings,” Ms. Rogers agreed with counsel’s statement that

[s]ometimes you do and sometimes you don’t.” Pet. App. 101; see id. at

16. She went on, however, to state that “I do not deny anyone permission

to hand out flyers, the ones that I have seen,” id. at 102, that if it is “some-

thing [she is) uncomfortable with, [she] will refer it to [her supervisor ],”

ibid., and that she also “refer(s}” matters “to the community council and

they meet with the board and the residents to decide,” id. at 101. In sum

her testimony establishes that she does not always personally grant

permission. It does not concretely establish that anyone who has sought

entry to Whitcomb Court to engage in expressive activity has ever been

denied. Nor does it establish that anyone who has been engaged in

eo np ia: with or without permission, has ever been

cases). Such laws are generally not susceptible to challenges

such as this one, in which the party bringing the challenge

has not engaged in expressive activity at all, because the

regulation itself applies to few parties in that situation. Yet

where the issue has arisen, this Court has stated that laws of

general applicability, which apply to conduct that has little

or nothing to do with speech, are not subject to facial

overbreadth challenges, even though such laws could have

an incidental effect on speech in particular instances. That

principle precludes respondent's challenge in this case.

1. In City of Lakewood v. Plain Dealer Publishing Co.,

426 U.S. 750, 763-764 (1988), the Court entertained a facial

challenge to an ordinance that gave the mayor of a city “un-

fettered discretion” to grant or deny applications for annual

permits to place newsracks on city property and held that

the ordinance was unconstitutional. 486 U.S. at 772. The

Court held that facial challenges may be brought to laws that

“have a close enough nexus to expression, or to conduct

commonly associated with expression, to pose a real and sub-

stantial threat of * * * censorship risks.” Jd. at 759. The

Court held that, because the newsrack ordinance had to do

with the distribution of newspapers, it satisfied that stan-

dard.

The Court in City of Lakewood, however, distinguished

“laws of general application that are not aimed at conduct

commonly associated with expression,” such as “a law re-

quiring building permits” or “a law giving the mayor unbri-

dled discretion to decide which soda vendors may place their

machines on public property.” 486 U.S. at 760-761. The

Court noted that facial challenges to such laws of general

applicability would not be warranted, notwithstanding that

they could be applied in violation of the First Amendment in

particular cases, such as where an unpopular newspaper is

refused a building permit or a soda vendor who has criticized

the municipal gove nment is denied a permit to place a

vending machine on public property. Jd. at 761. As the

Court explained, “such laws provide too blunt a censorship

instrument to warrant judicial intervention prior to an alle-

gation of actual misuse.” Jbid. See generally Note, The

First Amendment Overbreadth Doctrine, 83 Harv. L. Rev.

844, 860 (1970) (“[T]he primary conduct which is affected by

the law at issue must to a substantial extent be the kind of

expressive and associational behavior which at least has a

colorable claim to the protection of the [First] amendment”

in order for the overbreadth doctrine to be applied.).

2. Based on the above principles, the Court has generally

entertained overbreadth challenges only to laws that un-

doubtedly target expression. See pp. 14-15, supra (citing

cases). The limits of that principle involve cases such as

Thomas v. Chicago Park District, 534 U.S. 316 (2002), and

Forsyth County v. Nationalist Movement, 505 U.S. 123

(1992). Thomas involved a facial overbreadth challenge to an

ordinance that required a permit for any gathering of more

than fifty persons in a public park. Forsyth County involved

a challenge to an ordinance that was adopted “[a]s a direct

result” of two street demonstrations and required a permit

al d fee for “parades, assemblies, demonstrations, road clos-

ings, and other uses of public property and roads by private

organizations and groups of private persons for private

purposes.” 505 U.S. at 126 (citation omitted). Although the

Court did not in either case address whether the challenged

ordinances were sufficiently targeted at speech to satisfy

City of Lakewood, the permit requirements in both cases

applied not only to expressive activity, but to activity with

little or no expressive component. At the same time, both

ordinances appear to have applied solely to gatherings of

groups of people in traditional public forums, and the ordi-

nance in Forsyth County was specifically adopted as a result

of such gatherings. Gatherings of people in a public forum

are a characteristic of expressive activity and a traditional

function of public parks and streets. Cf. Roberts v. United

States Jaycees, 468 U.S. 609, 622 (1984) (“An individual’s

freedom to speak * * * and to petition the government for

the redress of grievances could not be vigorously protected

from interference by the State unless a correlative freedom

to engage in group effort toward those ends were not also

guaranteed.”). The targeting at gatherings in a public forum

would suggest that the ordinances in both cases regulated

conduct that “ha[d] a close enough nexus to expression, or to

conduct commonly associated with expression, to pose a real

and substantial threat of * * * censorship risks.” City of

Lakewood, 486 U.S. at 759.°

This case, however, involves a trespass policy that, as the

Virginia Supreme Court noted, “is designed to punish activi-

ties that are not protected by the First Amendment.” Pet.

App. 13. The policy was adopted “{iJn an effort to eradicate

illegal drug activity in Whitcomb Court, which was described

as an ‘open-air drug market.’” Jd. at 3. See id. at 29 n.1

(Housing Authority brochure listing “goals of street pri-

vatization” as, inter alia, “[t}o make communities safer by

removing persons who commit unlawful acts which destroy

the peaceful enjoyment of other residents,” and “[t]o ensure

that children have places to play free of drug paraphernalia

and the danger of gunshots and other criminal activity”).

The trespass policy punishes conduct—the entry on to

6 In Cor v. Louisiana, 379 U.S. 536 (1965), and Edwards v. South

Carolina, 372 U.S. 229 (1963), the Court addressed First Amendment

challenges to breach-of-the-peace statutes as applied to the conduct of

defendant civil rights demonstrators. Coz, 379 U.S. at 544-552; Edwards,

372 U.S. at 234-236. At the end of the Court's discussion in each case, it

noted that the statutes would also be facially unconstitutional for over-

breadth. Cox, 379 U.S. at 551-552; Edwards, 372 U.S. at 238. As the

Court later explained in Broadrick, however, “(these additional holdings

were unnecessary to the dispositions of the cases” and were not relied on

in a later case addressing a conviction under the same breach-of-the-peace

statute at issue in Cor. 413 U.S. at 614 n.13 (internal quotation marks

omitted).

Housing Authority property by people not authorized to be

there—not speech. Unlike in Thomas or Forsyth County,

the vast bulk of the conduct the Housing Authority trespass

policy targets has nothing to do with expressive activity.

: Like any trespass law, the trespass policy might on occa-

sion apply to demonstrators, leafletters, or others attempt-

ing to engage in protected activity, and it could be uncon-

stitutionally applied in those instances. See, e.g., Marsh v.

Alabama, 326 U.S. 501, 509 (1946) (“Insofar as the State

[through its trespass law] has attempted to impose criminal

punishment on appellant for undertaking to distribute reli-

gious literature in a company town, its action cannot

stand.”). But the Housing Authority’s trespass policy by its

nature is targeted at anyone who seeks to enter Whitcomb

Court, and in particular at drug dealers, their customers, and

other criminals who had frequented the property. Accord-

ingly, the trespass policy, like the laws of general applicabil-

ity the Court discussed in City of Lakewood or the trespass

law in Marsh v. Alabama, applies very broadly to conduct

that has little to do with speech. A First Amendment chal-

lenge to such laws should not be entertained in the absence

of a claim of “actual misuse” in a given case. City of

Lakewood, 486 U.S. at 761.

At the very least, overbreadth analysis should not en-

compass the potential invalidation of a general statute in its

applications to conduct that has no arguable connection to

speech or expression. Even if the statute has some speech-

related applications and all of those applications could be

challenged (and invalidated) through overbreadth doctrine,

non-speech-related applications of the law should be left

untouched. In this case, that would mean that, at a mini-

mum, non-speech-related applications of the trespass policy

at Whitcomb Court—that is, applications to conduct such as

that engaged in by respondent—could not be challenged and

facially invalidated under overbreadth principles.

D. The Housing Authority’s Trespass Policy Is Not In Any

Event Substantially Overbroad

If respondent, as a party who did not engage in expressive

activity subject to the Housing Authority’s trespass policy,

is permitted to bring an overbreadth challenge to that policy,

the challenge should in any event be rejected because the

policy is not substantially overbroad. The overbreadth of

the policy—the extent to which it actually affects constitu-

tionally protected speech—is at most uncertain and mar-

ginal. By contrast, its plainly legitimate sweep extends to all

instances in which the policy bars those who have no legit-

imate business or social purpose and who are not engaging in

First Amendment protected activity from entering Whit-

comb Court. Because the overbroad reach of the Housing

Authority’s trespass policy thus likely extends only to “mar-

ginal applications,” Ferber, 458 U.S. at 770 n. 25 (citation

omitted), and it has no “embracing sweep * * * over pro-

tected expression,” id. at 771, it is not substantially

overbroad.’

Il. EVEN IF RESPONDENT MAY BRING THIS OVER-

BREADTH CHALLENGE, THE VIRGINIA SUP-

REME COURT ERRED IN DETERMINING THAT

THE HOUSING AUTHORITY’S TRESPASS POLICY

VIOLATES THE FIRST AMENDMENT

The Court of Appeals of Virginia, the intermediate state

appellate court, held that the streets and sidewalks of Whit-

7 This Court has explained that the function of facial overbreadth

adjudication, “a limited one at the outset, attenuates as the otherwis2

unprotected behavior that it forbids the State to sanction moves from

‘pure speech’ toward conduct and that conduct—even if expressive—falls

within the scope of otherwise valid criminal laws that reflect legitimate

state interests in maintaining comprehensive controls over harmful, con-

stitutionally unprotected conduct.” Broadrick, 413 U.S. at 615. The

Housing Authority’s trespass policy regulates conduct—entry on to Hous-

ing Authority property—not speech. Accordingly, the scope of the over-

breadth doctrine as it applies to such a policy is “attenuated.”

comb Court were a public forum, Pet. App. 33-40, but see id.

at 49-53 (dissenting opinion), and that the trespass policy

could not pass the strict standard of scrutiny applicable to

regulations forbidding access to such a forum, id. at 40-43.

The Virginia Supreme Court “recognize{d] that the Court of

Appeals decided this case on the basis that the Housing

Authority’s private streets constitute a public forum,” but

the court stated that it “need not resolve this issue * * *

and we will reserve consideration of this issue for another

day.” Jd. at 16. In fact, the legitimacy under the First

Amendment of the Housing Authority’s trespass policy

likely turns on the forum analysis of the public property to

which it was being applied. Accordingly, if this Court

reaches the merits of respondent’s First Amendment claim,

it should reverse the Virginia Supreme Court’s determina-

tion that the Housing Authority’s trespass policy violates

the First Amendment and remand for further appropriate

proceedings.

A. The Constitutionality Of The Regulation In This Case

Likely Turns On The Forum Classification Of The

Government Property At Issue

1. “Th{is] Court has adopted a forum analysis as a means

of determining when the Government’s interest in limiting

the use of its property to its intended purpose outweighs the

interest of those wishing to use the property for other

purposes.” Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 800 (1985). “To ascertain what

limits, if any, may be placed on protected speech,” the Court

has “often focused on the ‘place’ of that speech, considering

the nature of the forum the speaker seeks to employ.”

Frisby v. Schultz, 487 U.S. 474, 479 (1988); see United States

v. Kokinda, 497 U.S. 720, 726 (1990) (plurality opinion).

Indeed, “[t}he existence of a right of access to public prop-

erty and the standard by which limitations upon such a right

must be evaluated differ depending on the character of the

—— a aE

property at issue.” Perry Educ. Ass'n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 44 (1988).

2. “In places which by long tradition or by government

fiat have been devoted to assembly and debate, the rights of

the State to limit expressive activity are sharply cireum-

scribed.” Perry Educ. Ass'n, 460 U.S. at 45. Among the

restrictions the First Amendment imposes on governmental

regulation in such a forum is that officials must not be vested

with unfettered discretion to regulate expressive activity.”

But “{pJublic property which is not by tradition or designa-

tion a forum for public communication is governed by differ-

ent standards.” Jd. at 46. In such a location, “the State may

reserve the forum for its intended purposes, communicative

or otherwise, as long as the regulation on speech is

reasonable and not an effort to suppress expression merely

because public officials oppose the speaker's view.” [bid.

“(T]he First Amendment does not guarantee access to prop-

erty simply because it is owned or controlled by the govern-

ment.” United States Postal Serv. v. Council of Greenburgh

Civic Ass’ns, 453 U.S. 114, 129 (1981).

A corollary to that proposition is that, while this Court has

invalidated laws that granted too much discretion to public

officials to decide who would gain access to traditional First

Amendment forums such as public streets and parks, the

Court has never imposed similar requirements on regula-

tions restricting access to nonpublic forums. See Hale v.

Department of Energy, 806 F.2d 910, 917 (9th Cir. 1986). In

Greenburgh Civic Ass’ns, for example, the Court held that

authorized postal letterboxes are not public forums and that

the postal service accordingly may limit the rights of others

8 See, eg., Forsyth County v. Nationalist Movement, 505 U.S. 123

(1992); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 763-764

(1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969);

Kunz v. New York, 340 U.S. 290, 293-294 (1951); Niemotko v. Maryland,

340 U.S. 268, 271 (1951); Lovell v. City of Griffin, 308 U.S. 444 (1938).

~ See nals thal . Pet

. —$ss ——e —<—

to deposit materials in such boxes. In reaching that con-

clusion, the Court specifically referred to the line of cases in

which it had “not hesitated in the past to hold invalid laws

which it concluded granted too much discretion to public

officials” in traditional First Amendment forums. 453 U.S

at 130-131. But, having concluded that letterboxes are not

public forums, the Court also concluded that those standards

do not apply to letterboxes. /d. at 131 (“(W]e do not believe

the First Amendment requires us to make that leap.”).

The Court’s conclusion in Greenburgh Civic Ass’ns was

correct. Governments own and operate a wide variety of dif-

ferent types of property, including office buildings, housing

projects, military bases, law enforcement facilities, and many

more. Vesting a gatekeeper at a public park with discretion

to permit or deny entry based on the gatekeeper’s deter-

mination whether a person has an otherwise unspecified

valid purpose would likely run afoul of this Court’s public

forum cases. But no case of this Court suggests that vesting

an official at a publicly owned office building or apartment

complex with discretion to determine whether a visitor

seeks entry for a valid business or social purpose would

violate the First Amendment. Indeed, “{t]here is little doubt

that in some circumstances the government may ban the

entry on to public property that is not a ‘public forum’ of all

persons except those who have legitimate business on the

premises.” United States v. Grace, 461 U.S. 171, 177 (1983):

see Adderley v. Florida, 385 U.S. 39 (1966) (jailhouse drive-

way not public forum); Daniel v. City of Tampa, 38 F.3d 546

550 (11th Cir. 1994) (public housing property is “nonpublic

forum,” because “(t}he official mission of the Housing

Authority is to provide safe housing for its residents, not to

supply non-residents with a place to disseminate ideas ” and

in practice, access to Housing Authority property is care-

fully limited to lawful residents, their invited guests, and

those conducting official business”), cert. denied, 515 U.S.

1132 (1995).

3. A governmental limitation on entry must nevertheless

be reasonable and unrelated to a purpose to suppress speech

because of disagreement with the speaker’s view. See

Perry, supra. Those requirements are satisfied here. The

Housing Authority’s trespass policy is reasonable as a means

to help protect residents of Whitcomb Court from the drug

dealers and criminals preying on them, and the desire to

attack drug trafficking and other criminal activity at

Whitcomb Court has nothing to do with a desire to suppress

speech. Accordingly, if the Whitcomb Court property at

issue in this case is not a public forum (or is not a forum at

all), the government may properly vest the manager of the

property with much broader authority to permit or deny

entrance than would be permitted with respect to a public

forum. How broad the discretion may be must be evaluated

in light of particular facts. But at the threshold, a court must

determine whether the property 1s a public forum.

B. The Virginia Supreme Court Erred Because It Failed

To Decide Whether The Property Was A Public Forum

The Virginia Supreme Court erred in holding the official

discretion in this case unconstitutional without first deter-

mining whether the Whitcomb Court property is a public

forum. Nor is the status of the property entirely clear on

this record. Neither the physical character of the property

nor the fact that it likely was a public forum in the past is

decisive in determining whether it is a public forum now.

The issues that are decisive were not reached by the

Virginia Supreme Court, and this Court ought not address

those issues in the first instance.

1. Although respondent was arrested on a sidewalk, not

all sidewalks are public forums. “The mere physical char-

acteristics of the property cannot dictate forum analysis.”

Kokinda, 497 U.S. at 727 (plurality opinion). In Greer v.

Spock, 424 U.S. 828, 831 (1976) (citation omitted), for exam-

ple, regulations precluded “(dJjemonstrations, picketing, sit-

ins, protest marches, political speeches and similar activi-

ties” on a military base and also precluded “distribution or

posting of any publication * * * without prior written

approval” of the base commander. Unrestricted areas of the

base, however, were otherwise freely open to the public on

paved roads and footpaths, and no guard was ordinarily

posted at the entrance. Jd. at 830. The Court nonetheless

held that the unrestricted areas of the base were not a public

forum, id. at 835-837, and that the regulations prohibiting

expressive activities were constitutional on their face and as

applied to prohibit electioneering by civilians. Jd. at 838.

See Kokinda, 497 U.S. at 727 (plurality opinion) (noting that

in Greer “(t]he presence of sidewalks and streets within the

{military] base did not require a finding that it was a public

forum”); United States v. Albertini, 472 U.S. 675, 684-686

(1985) (military base not public forum). Accordingly, under

Greer, the mere fact that the area where respondent was

walking in Whitcomb Court has the physical characteristics

of a sidewalk does not establish that it is a public forum.

2. The fact that the sidewalk on which respondent was

walking had once been a public sidewalk also does not

establish that it is presently a public forum. The govern-

ment may convert a traditional public forum into a nonpublic

forum, so long as its actions are reasonable and taken for a

legitimate purpose, and so long as it takes appropriate steps

to make clear the changed nature of the forum. See First

Unitarian Church of Salt Lake City v. Salt Lake City Corp.,

308 F.3d 1114, 1130 (10th Cir. 2002) (“The mere fact that a

space is on what used to be a public street does not auto-

matically render it a public forum.”); Hawkins v. City &

County of Denver, 170 F.3d 1281, 1287 (10th Cir.) (“The gov-

ernment may, by changing the physical nature of its prop-

erty, alter it to such an extent that it no longer retains its

ublic forum status.”), cert. denied, 528 U.S. 871 “ered

indeed “(ijn some sense the government eg r om

; by selling the property,

ty to close a public forum, ig th per

mn its physical character, or yi —

ishna Conscious , Ine.

” International Society for Kris 3, Im

ny oe U.S. 672, 699 (1992) (Kennedy, J., ayes do

oe ‘udgment). Otherwise, “the State would be ane i “

mada closing a park, or eliminating a street ! ts -

which no one has understood the public forum doc ri

irel.]” Id. at 699-700. . ad

ee is decisive in determining the forum arte

tien of the sidewalk on which — wae yr >

ich 1 i fact been clo

t to which it has in actual )

aes such that it has lost its former eooegerr’ as yen

i d in Grace that sidewa

sidewalk. This Court note ool

i that traditionally

those areas of public property tn litio

ee held open to the public for expressive me eee

ithi blic property tha

ly within those areas of pu oper

pena» Si generally without further inquiry, to be —

forum property.” 461 US. at 179. That was eritical nee

with respect to the public sidewalks surrounding t e vn

reme Court grounds, because those sidewalks are i ;

tingruishable from any other sidewalks in pipe : ;

Ibid. As the Court noted, distinguishing the sidewa oe

Grace from the sidewalk on the military base in —_ 7

sidewalk in Grace had “no separation, no fence, an fo

indication whatever to persons —— cporeimetiae pe

rb and sidewalks that serve as tne '

roti grounds that they have entered some special sag -

enclave.” Id. at 179-180. Under those ee

Court ruled that Congress had not — yar ;

blic forum simply Dy

the sidewalks into a nonpu | deg “

ibiti ssive activities: Congre

statute prohibiting certain expre a

f the property Dy

t “transform the character 0 by

canaies of including it within the statutory definition of

what might be considered a non-public forum parcel of prop-

erty.” Ibid.

Grace establishes that sidewalks are presumptively public

forums, but Greer establishes that that presumption may be

overcome. 461 U.S. at 179. Aside from Grace, this Court has

not considered the analysis that is applicable when the

government seeks to turn property that was a public forum

to another use. Among the factors to consider in that analy-

sis would be (1) whether the sidewalk and street in question

are, as a practical matter, closed to the public; (2) whether

the government has taken sufficient steps to make that

closure clear to the public; and (3) whether the purpose

served by the sidewalks and streets at issue is consistent

with a finding that they have become a nonpublic forum. See

First Unitarian Church of Salt Lake City, 308 F.3d at 1130-

1131; Hawkins, 170 F.3d at 1287-1288; see also Kokinda, 497

U.S. at 728 (plurality opinion) (“location and purpose” of the

property); International Society for Krishna Consciousness,

505 U.S. at 698-699 (Kennedy, J., concurring in the judg-

ment).

4. The 6-5 division in the intermediate state appellate

court was based largely on differing interpretations of the

record concerning whether the street on which respondent

was arrested remained a public forum. Compare Pet. App.

38 (majority opinion) (“Because the streets appear no dif-

ferent from other streets in Richmond and serve the same

function they did prior to privatization, we can discern no

reason why they should be treated any differently from any

other street or sidewalk.”) (internal quotation marks and

citation omitted) with id. at 52 (dissenting opinion) (there

was “notice to the residents and the public at large in the

form of repeated and obvious signage that the streets and

sidewalks were no longer ‘public’ in character”; “there is

absolutely no evidence that the streets and/or sidewalks of

the Whitcomb Court property remained open to a public flow

of traffic, as the majority suggests”). The Virginia Supreme

Court did not reach that issue, and this Court ought not, as

an original matter, decide whether, on the limited record in

this case, the Housing Authority succeeded in its effort to

convert the sidewalk at issue in this case into a nonpublic

forum. Thus, even if the Court were to determine that a

party in respondent’s position may bring an overbreadth

challenge, the Court should reverse the decision of the

Virginia Supreme Court and remand for further proceed-

ings, including a classification, under the public forum doc-

trine, of the sidewalk in Whitcomb Court on which respon-

dent was arrested.

CONCLUSION

The judgment of the Supreme Court of Virginia should be

reversed.

Respectfully submitted.