# Amicus Curiae Brief — Virginia v. Hicks > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 113 ## Text 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 .. 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 29 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 30 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. 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 MICHAEL JAY SINGER STEPHANIE R. MARCUS Attorneys MARCH 2003 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A10. Public record. Not legal advice.