Amicus Curiae Brief — Virginia v. Hicks

Y | "Supreme Ceurt, U.S.

FILED

No. 02-371 MAR @ 2003

“OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

KEVIN LAMONT HICKS,

Respondent.

BRIEF OF THE STATES OF ALABAMA, ALASKA,

DELAWARE, FLORIDA, HAWAII, INDIANA, MISSISSIPPI,

MISSOURI, OHIO, OKLAHOMA, OREGON, SOUTH DAKOTA,

TENNESSEE, TEXAS, UTAH, AND THE COMMONWEALTH OF

PUERTO RICO IN SUPPORT OF PETITIONER,

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

ERWIN O. SWITZER, Il

Special Chief Counsel

Counsel of Record

P.O. Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax: (573) 751-0774

Counsel for Amicus Curiae

Additional counsel listed inside cover

Michele L. Jackson

State Appeals Coordinator

Office of the Attorney General

11 South Union St.

Montgomery, AL 36130

Gregg D. Renkes

Attorney General

PO Box 110300

Juneau, AK 99801

M. Jane Brady

Attorney General

820 N. French St.

Wilmington, DE 19801

Mark J. Bennett

Attorney General

425 Queen Street

Honolulu, HI 96813

Steve Carter

Attorney General

302 W. Washington St.

IGCS, 5" FI.

Indianapolis, IN 46204

Charles J. Crist, Jr.

Attorney General

The Capitol PL-01

Tallahassee, FL 32399-1050

Mike Moore

Attorney General

PO Box 220

Jackson, MS 39205

Jim Petro

Attorney General

30 E. Broad St., 17" FI.

Columbus, OH 43215

W.A. Drew Edmondson

Attorney General

2300 N. Lincoln Blvd.

Oklahoma City, OK 73105-4894

Hardy Myers

Attorney General

1162 Court St. NE

Salem, OR 97301

Lawrence E. Long

Attorney General

500 East Capitol Ave

Pierre, SD 57501-5070

Paul G. Summers

Attorney General &

Reporter of Tennessee

PO Box 20207

Nashville, TN 37202-0207

Greg Abbott

Attorney General

PO Box 12548

Austin, TX 78711-2548

Mark L. Shurtleff

Attorney General

236 State Capitol

Salt Lake City, UT 84114

Anabelle Rodriguez

Secretary of Justice

Commonwealth of Puerto Rico

-

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QUESTION PRESENTED

May a criminal defendant escape conviction by

invoking the overbreadth doctrine even though (i) his

own offense did not involve any expressive conduct,

and (ii) his conduct was not proscribed by that portion

of the government policy he challenges as overbroad?

In this context, does the Constitution recognize a

distinction between actions taken by a governmental

unit as landlord and actions taken by a governmental

unit as sovereign?

TABLE OF CONTENTS

Page

SST SUSU so dcdccniccconeceskseenns i

TABLE OF AUTHIORITIES $3.2... cccccccccccccccces iii

INTEREST OF AMICUS CURIAE ............0.0005: l

SUMMARY OF ARGUMENT ..................055- 2

ARGUMENT

I. As an exception to the general rules of standing,

the overbreadth doctrine should be applied

SE ccccccccctcsnsséddeneseusecucecesis +

Il. The overbreadth doctrine should apply only to

laws that are directed to expressive activities and

that are capable of chilling protected speech, and

to defendants who engage in expressive activities. . . 6

Ill. By establishing a low standard for invalidation of

criminal trespass laws, the Virginia Supreme

Court’s ruling seriously threatens public safety. . . . 12

IV. Those who will suffer most from the invalidation

of trespass laws or other public safety laws, persons

who are among the most vulnerable in our society,

should not be burdened with more crime. ........ 19

GES ccc ccscnsncccesaedassectdacocosaue 21

ili

TABLE OF AUTHORITIES

CASES Page

Broadrick v. Oklahoma, 413 U.S. 601 (1973) . 5, 6, 8-12, 20

Cantwell v. Connecticut, 310 U.S. 296 (1940) .......... 9

City of Lakewood v. Plain Dealer Publishing Co.,

GP ae POGUE cc ccescccccsccccsesss 12,19

Cox v. Louisiana, 379 U.S. 536 (1965) .... 2.6.66 6c ees 9

Edwards v. South Carolina, 372 U.S. 229 (1963) ........ 4

Forsyth County, Ga. v. Nationalist Movement,

Fa Sh CP GUE cc cccseccccccsscecesecss 19

Garner v. Louisiana, 368 U.S. 157 (1961) ............. 9

Gooding v. Wilson, 405 U.S. 518 (1972) ............ 5,19

Healy v. James, 408 U.S. 169 (1972)... 2.2... 6.6.2 eee 17

Hicks v. Virginia, 54& S.E.2d 249 (Va. App. banc 2001) . 11

Hill v. Colorado, 530 U.S. 703 (2000) ............. 9,12

Keyishian v. Board of Regents, 385 U.S. 589 (1967) .... 17

New York v. Ferber, 458 U.S. 747 (1982) ........ 5, 6, 8,9

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ........ 17

Teamsters Union v. Vogt, Inc., 354 U.S. 284 (1957) ...... 9

iv

Virginia v. Hicks,

563 S.E.2d 674 (Va. 2002) ......... 3, 7, 11-14,18

Widmar v. Vincent, 454 U.S. 263 (1981) ..............

STATUTES

a i el

a ne

i

SCHOLARLY AUTHORITIES

Richard H. Fallon, Making Sense of Overbreadth,

Ee EEE ccccceséevceseeeeues

The First Amendment Overbreadth Doctrine,

83 Harv. L. Rev. 844 (1970) ..................

OTHER

Regulation Two, Marshal of the Supreme Court

Regulations, United States Supreme Court

Building and Grounds, approved Oct. 4, 1994. ...

14

No. 02-371

In the

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

KEVIN LAMONT HICKS,

Respondent.

BRIEF OF THE STATES OF ALABAMA, ALASKA

DELAWARE, FLORIDA, HAWAII, INDIANA, MISSISSIPPI,

MISSOURI, OHIO, OKLAHOMA, OREGON, SOUTH DAKOTA,

TENNESSEE, TEXAS, UTAH, AND THE COMMONWEALTH OF

PUERTO RICO IN SUPPORT OF PETITIONER,

INTEREST OF AMICUS CURIAE

Attorneys general — and thus the chief law enforcement

officers — of their respective states and commonwealths, submit

this brief on behalf of their states or commonwealths as amici

curiae. Under varying schemes, the Attorneys General are

called upon to enforce laws that protect the welfare and safety

of their states’ citizens. They are also responsible for defending

laws, policies, and actions against constitutional attacks. The

Virginia Supreme Court has construed the First Amendment in

a way that implicates both of these missions.

2

The Virginia Supreme Court’s expansive interpretation

of the First Amendment overbreadth doctrine threatens to make

susceptible to overbreadth challenges public safety and other

laws that were heretofore outside the doctrine’s reaci:. Schools,

libraries, and courthouses have strict restrictions on unautho-

rized persons entering all or portions of their property. Trespass

laws and polices are often the first law enforcement tools that

keep potentially dangerous persons from entering, and thus

protect adults and children who reside on, work on, attend

school on, or visit government property. The Virginia Supreme

Court interpreted the overbreadth doctrine in a way that could

lead to declarations that many trespass policies are invalid and

thereby make government-owned property less safe for resi-

dents and for the public.

The amici seek to defend the continued ability of

government officials to protect public safety through the

enforcement of criminal laws, including laws against

trespassing on government property.

SUMMARY OF ARGUMENT

The overbreadth doctrine as interpreted by tinis Court is

narrow. It allows a court to invalidate a law or policy if its mere

existence, as opposed to its application, deters or “chills”

potential speakers, regardless of whether the statute has been

unconstitutionally applied to the defendant or litigant.

Moreover, even when there is a chilling effect of a law or policy

directed toward conduct, it can be invalidated only when the

interest in preventing chilling of protected speech outweighs the

legitimate sweep of that law.

Though narrow, the doctrine is an extraordinary depar-

ture from the traditional rules of standing. It allows a person to

challenge a statute based on its potential application to persons

not before the court. Therefore, it is only applied sparingly and

as a last resort.

Here, the Virginia Supreme Court should not have

invoked the overbreadth doctrine to invalidate the policies of

the Housing Authority’ barring from a housing development

non-residents, non-employees, and persons who “cannot

demonstrate a legitimate business or social purpose for being on

the premises.”

The policy at issue is part of the enforcement

mechanism for an ordinary criminal law — a trespass statute —

that only incidentally affects speech. And the person invoking

the overbreadth doctrine was not even engaging in First

Amendment expressive activity. When the main focus of the

law or policy is not the restriction of speech, but the protection

of the public, and the person subject to the charge at issue is not

engaging in expressive activity, the likelihood of chilling from

the existence of the law is too remote to justify its invalidation.

Here, the Virginia Supreme Court invoked the overbreadth

doctrine with neither a finding nor evidence that the Housing

Authority policy had a chilling effect on speech.

Even if there had been some evidence that the existence

of the Housing Authority policy deterred someone from

engaging in protected speech, the interest in preventing the

chilling would be outweighed by the government interest in

public safety. Trespass laws serve a critical function. When

public housing developments _ open-air drug markets, when

courthouses are threatened wiu. vioterrorism attacks, and when

schools are subjected to gunfire, trespass laws are often the first

' The Richmond Redevelopment and Housing Authority

is referred to herein as the Housing Authority.

? Virginia v. Hicks, 563 S.E.2d 674, 676 (Va. 2002).

4

line of defense. The essential safety role those laws play should

not be subordinated to a mere conjecture that they may be

applied to prevent someone from engaging in protected speech.

The holding of the Virginia Supreme Court ignores the

safety interest of those using government property. The court's

holding does not deprive those who live on private property of

the benefit of trespass laws. But it takes that protection away

from the poor who live in public housing — and not because the

trespass laws and policies have affected speech, but merely

because they might. It also takes trespass protection away from

others who use the government’s real estate, whether they be

library patrons, school and college students, or even visitors to

this Court.

This Court should reiterate the narrow scope of the

overbreadth doctrine, bringing its focus back to its traditional

and appropriate limits so as to protect persons on government

property.

ARGUMENT

I. As an exception to the general rules of standing, the

overbreadth doctrine should be applied sparingly.

Attorneys general and other government officials

frequently hear the cry that a statute, regulation. or policy is

“overbroad.” The Virginia Supreme Court, losing sight of the

core principles of the overbreadth doctrine as set forth by this

Court, has expanded the doctrine to unprecedented lengths.

The overbreadth doctrine is an exception to the tradi-

tional rule governing constitutional adjudication, i.e., that a

person to whom a statute may constitutionally be applied cannot

challenge the statute on the ground that it could be unconsti-

5

tutionally applied to others.’ That traditional rule exists be-

cause “courts are not roving commissions assigned to pass

judgment on the validity of the Nation’s laws.’ Nevertheless,

this Court has concluded that “the First Amendment needs

breathing space,” and established overbreadth as an exception

to the general rule. That exception, under which litigants are

permitted to challenge a statute on its face even though their

own rights of free expression have not been violated, is based

on a “judicial prediction or assumption that the statute’s very

existence may cause others not before the court to refrain from

constitutionally protected speech or expression.”* This poten-

tial for self-censorship is sometimes referred to as the “chilling”

effect of such a law.°

Holding that a law is facially overbroad in violation of

the First Amendment brings two consequences. First, if the

challenge occurs in a criminal case, the defendant goes free.’

Second, any enforcement of that law is forbidden, at least until

the law is changed or is given a limiting construction that

“remove[s] the seeming threat or deterrence to constitutionally

> New York v. Ferber, 458 U.S. 747, 767 (1982);

Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). The

doctrine is occasionally applied, as here. to policies rather than

a Statute, regulation, or ordinance. For simplicity, we refer

generically to “laws.”

* Broadrick, 413 U.S. at 610-11.

‘Jd. at 612.

© Ferber, 458 U.S. at 772, n.27: Broadrick, 413 U.S. at

618.

” Gooding v. Wilson, 405 U.S. 518 (1972).

6

protected expression.”* Because these consequences are so

severe, this Court calls the application of the overbreadth

doctrine “strong medicine” that should be “employed by the

Court sparingly and only as a last resort.” The overbreadth

doctrine is to be applied only when “facial invalidation of a

Statute is truly warranted” and “carefully tied to the circum-

stances.”'°

The Virginia Supreme Court failed to explain why the

extraordinary remedy of invalidating a policy, particularly one

primarily directed to protecting public safety, was “truly

warranted.” The Virginia court’s blurry vision obscures the

principles underlying the overbreadth doctrine, letting courts

stray and jeopardizing safety in public housing, schools, and

courthouses.

Il. The overbreadth doctrine should apply only to laws

that are directed to expressive activities and that are

capable of chilling protected speech, and to defen-

dants who engage in expressive activities.

This Court has warned that the overbreadth doctrine is

“strong medicine.”'' But the way the doctrine was applied by

the Virginia Supreme Court, it was more than strong medicine.

It was an amputation.

The Virginia Supreme Court did not invalidate that

* Broadrick, 413 U.S. at 613.

* Id. at 613.

'° Ferber, 458 U.S. at 769.

'' Broadrick, 413 U.S. at 613.

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state’s trespass statute.'* Instead, it invalidated the Housing

Authority’s trespass policy as being facially overbroad. The

Virginia court called the Housing Authority policy partially

written and partially unwritten. The written portion makes the

trespass statute applicable to any non-resident or non-employee

or any other person who “cannot demonstrate a legitimate

business or social purpose for being on the premises.”'’ The

court found the “unwritten” portion in the testimony of a

manager of the Housing Authority regarding hypothetical

situations.'* As the Commonwealth of Virginia points out in its

brief on the merits, that testimony may be more accurately

described as reflecting an “unwritten addendum” to a written

policy. Moreover, the Virginia court resorted to use of an

oxymoron when it stated that an “unwritten” policy is “facially”

overbroad."

The Virginia Supreme Court’s ruling is disturbing. It in

effect repeals Virginia’ s trespass law, but only in selected areas:

Housing Authority properties and government property to

which trespass policies of similar specificity apply. Those

trespass laws and policies provide obvious public safety

benefits. They afford privacy and security to persons who live,

work, or visit the areas that they cover. These benefits remain

in place for most Virginia residents. But persons who live in

public housing, and presumably for anyone on government

property covered by an unauthorized-persons trespass policy

'? The trespass law under which defendant Hicks was

convicted is Va. Code § 18.2-119.

'? Hicks, 563 S.E.2d at 676.

'* 563 S.E.2d at 680.

1S Id.

8

similar to that of the Housing Authority, have lost the protec-

tion of the Virginia trespass law.

Respondent obtained that result even though the

Virginia court did not jump all the hurdles prerequisite to an

overbreadth finding. A court considering an overbreadth chal-

lenge must determine whether the party making the challenge

has standing to do so as well as whether substantively the

doctrine should apply in the particular factual situation. The

question on which this Court granted certiorari deals with the

standing issue, i.e., can defendant Hicks bring an overbreadth

challenge here? The Commonwealth of Virginia has briefed

that issue thoroughly and its analysis will not be repeated here.

But in addition to the important concerns regarding standing,

amici are also concerned with the deficiencies in the Virginia

court’s substantive analysis.. By applying the overbreadth

doctrine without a finding or evidence that the contested

trespass policy has a chilling effect, or even an explanation of

why the interest in public safety is outweighed by the interest in

deterring a chilling effect, the Virginia court has created a very

troubling precedent — one with significant adverse implications.

Courts and commentators have noted that the

overbreadth doctrine should not be applied in a fashion that

threatens public safety, i.e., that it should not be applied to

ordinary criminal laws, and to trespass laws in particular. For

instance, this Court in Broadrick v. Oklahoma recognized a

distinction between applying the overbreadth doctrine to laws

that primarily regulate speech and applying it to laws that do so

only indirectly or incidentally: “{[O]verbreadth claims, if enter-

tained at all, have been curtailed when invoked against ordinary

criminal laws that are sought to be applied to protected con-

duct.”"® And in New York v. Ferber, this Court stated: “[T]he

'© Broadrick, 413 U.S. at 613.

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9

Court’s practice when confronted with ordinary criminal lav .

that are sought to be applied against protected conduct is not to

invalidate the law in toto, but rather to reverse the particular

conviction.”'’ This Court further observed in Broadrick that

when it had overturned breach-of-peace convictions in the past,

it did so on as-applied grounds, and considered references in

those opinions to facial overbreadth to be dicta."*

Additionally, this Court has stated that the function of

the overbreadth doctrine “attenuates” as the behavior moves

from “pure speech” toward conduct (even if expressive) that

“falls within the scope of otherwise valid criminal laws that

reflect legitimate state interests.”'? Even if the conduct-directed

law does deter speech, “there comes a point where that effect —

at best a prediction — cannot, with confidence, justify invali-

dating a statute on its face.” When conduct, and not merely

speech is involved, the overbreadth must be both real and

substantial, when compared to the statute’s “plainly legitimate

sweep.””' Thus, while chilling is a prerequisite to an over-

breadth invalidation, it is not sufficient. The nature and degree

of the chilling must be weighed against the legitimate sweep of

the law.

458 U.S. at 773.

'® Broadrick, 413 U.S. at 614-15, distinguishing

Cantwell v. Connecticut, 310 U.S. 296 (1940); Garner v.

Louisiana, 368 U.S. 157 (1961); Edwards v. South Carolina,

372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965);

Teamsters Union v. Vogt, Inc., 354 U.S. 284 (1957).

'? Broadrick, 413 U.S. at 615.

20 Id

*! Id.; Hill v. Colorado, 530 U.S. 703, 731-32 (2000).

10

Commentators have endorsed these principles expressly

as to trespass laws, even in advocating an expansion of the

overbreadth doctrine, because “courts should hesitate to find

substantial overbreadth” to a statute “that aims to promote state

interests unrelated to the content of expression and that

infringes First Amendment interests only incidentally.’ That

is because

when the government has not targeted

expressive activity, courts cannot reasonably

require a regulation to achieve the degree of

precision that is warranted when a law centrally

implicates speech. Only a small likelihood will

typically exist that the statute reflects a covert

effort to discriminate on the basis of content.

Moreover, the government's valid interest in

being able to enforce the statute will frequently

be important.”

An often-cited Harvard Law Review Note presents a

similar analysis. The author observes that overbreadth scrutiny

applies when the “primary conduct ... 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.”

2 Richard H. Fallon, Making Sense of Overbreadth, 100

YALE L.J. 853, 896 (1991). See also id. at 908 (advocating

greater use of overbreadth doctrine).

° Id. at 897.

** Note, The First Amendment Overbreadth Doctrine, 83

HARV. L. REV. 844, 860 (1970).

OS eer ~

~ OS wrt,

1]

The Virginia Supreme Court took the overbreadth

doctrine to a new level when it applied that doctrine to an

ordinary criminal law, and to conduct that was not expressive

conduct protected by the First Amendment.”* The likelihood of

a chilling effect in such circumstances is remote. Here, the

Virginia court invalidated the Housing Authority policy without

concluding that the policy deterred or was likely to deter anyone

from engaging in protected expressive activity. There was no

evidence that anyone interested in engaging in protected

expressive activity even knew of the Housing Authority policy.

An unknown policy does not deter conduct.

Using the overbreadth doctrine as anything other than “a

last resort”’* to attack laws that really do deter speech threatens

the fair and proper use of the criminal law. Courts considering

the doctrine must recognize that it is not applied broadly; here,

as in many other instances where a criminal defendant wants to

invoke overbreadth to avoid prosecution, we are only at “a point

where [the chilling] effect — at best a prediction — cannot, with

confidence, justify invalidating a statute on its face.””’ It must

be an extraordinary circumstance where a defendant whose

actions have absolutely nothing to do with speech is able to

avoid prosecution because a statute might, at some other time

** In the instant case, defendant Hicks merely claimed to

be delivering diapers to his son when he was charged with a

trespass violation. Hicks, 563 S.E.2d at 677, 684. Hicks had

previously been convicted of damaging property at the Housing

Authority. Hicks v. Virginia, 548 S.E.2d 249, 252 (Va. App.

banc 2001), aff'd in part and vacated in part, 563 S.E.2d 674

(Va. 2002).

*° Broadrick, 413 U.S. at 613.

*” Id. at 613, 615.

a, Se ae

12

in some other, so far entirely hypothetical circumstance, be

invoked to inhibit speech.

Ill. By establishing a low standard for invalidation of

criminal trespass laws, the Virginia Supreme

Court's ruling seriously threatens public safety.

Even in cases in which some chilling exists, courts must

balance the chilling effect of the law or policy against its

“plainly legitimate sweep.”* Here, the public safety interests

served by the Housing Authority’s trespass policy were

substantial: the undisputed record showed that the primary goal

was to “eradicate illegal drug activity in ... an ‘open-air.drug

market” in the housing complex.”

Rendering criminal trespass laws useless in protecting

government property creates great danger to public safety. Ina

society where we see guns at schools and bombs and anthrax at

courthouses, trespass laws are a major tool for law enforcement

officials. These laws are not typically mere “keep off the -

grass” regulations enacted to make property maintenance easier.

Invalidating them poses a much greater threat than does

invalidating speech-restriction laws or expressive-conduct-

restriction laws. It is not hard to appreciate the difference

between the effect on public safety of invalidating a law barring

outsiders from a housing complex invaded by an open-air drug

market and the effect of invalidating a law requiring a permit to

place newspaper racks on a public sidewalk.” In considering

** Broadrick, 413 U.S. at 615; Hill, 530 U.S. at 731-32.

** Hicks, 563 S.E.2d at 676.

* Compare this case to City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750 (1988)(invalidating

13

whether to invalidate laws or policies, courts should give great

weight to the benefits of the “plainly legitimate sweep” of

trespass laws or other ordinary criminal laws.

The Housing Authority policies barring persons without

a “legitimate business or social purpose for being on the

premises””' are similar to policies for many government owned

places. A typical example is the trespass policy for the United

States Supreme Court Building. This Court’s regulations give

the Marshal of the Supreme Court nearly complete discretion

to bar the general public from all or any portion of the Supreme

Court Building or grounds, and to determine who is or is not a

member of the “general public”:

In order to protect the Supreme Court Building

and grounds, to protect the persons and property

therein, or to maintain suitable order and

decorum, the Marshal of the Supreme Court,

pursuant to the responsibilities outlined in 40

U.S.C. § 13/, may, at any time, declare the

Supreme Court Building and grounds, or any

portion thereof, closed to the general public.

Any person who, having been informed of the

closure of the building or grounds or portion of

the building or grounds, enters the closed area

without the authorization of the Marshal or

refuses to leave the closed area after being

requested to do so shal! be subject to arrest and

ordinance requiring permits for placement of newspaper racks

on public property, with permits issued at the discretion of the

mavor).

"Id at 676.

14

subject to penalties set forth in 40 U.S.C.

§ 13m.”

Appropriately, this regulation is no more definite than

the Housing Authority regulation barring access to any person

who is not a resident, is not an employee, or “cannot demon-

strate a legitimate business or social purpose for being on the

premises.””’ In fact, the Housing Authority regulation is even

more definite in its phrasing than the Supreme Court’s bar on

the “general public” accessing certain areas. The regulation on

its face contains no standards for the exercise of the Marshal's

discretion that would prevent the Marshal from engaging in

viewpoint discrimination in defining “general public” or in

deciding who can access which areas.

And there is nothing wrong with that, except in the eyes

of the Virginia Supreme Court. In that court’s view, standard-

less discretion alone leads to an invalidation of a trespass-type

policy. Under the Virginia court’s decision, the Supreme Court

Building trespass regulation would be invalid.

The implications of the Virginia Supreme Court’s

analysis would be staggering for the Supreme Court Building.

A person planning terrorist activity might trespass onto restric-

ted parts of the building to learn about the floor plans, access,

and other details of the non-public portions of the building. If

he is then arrested, the Virginia court’s analysis would allow

him to argue that the broad discretion given to the Marshal

makes him immune from conviction. Moreover, an overbreadth

* Regulation Two, approved October 4, 1994, provided

to counsel Erwin O. Switzer by the Supreme Court of the

United States Police via facsimile on February 14, 2003.

® Hicks, 563 S.E.2d at 676.

15

ruling would leave this Court entirely without trespass

regulations, at least until it could come up with something that

meets the Virginia court’s standard.

We do not use this example to criticize this Court's

policies in any way. The point is the opposite. This Court's

security policies are appropriate and reasonable; the Virginia

Supreme Court’s analysis and its necessary results are not. The

nation would be severely endangered if the trespass policies of

the Supreme Court Building were easily invalidated. Depriving

the residents of a single housing development of the protection

of trespass policies would not have the same broad impact. But

those people also deserve protection.

We cannot quantify the scope of the problem that

affirming the Virginia court’s holding would create. Formal

policies like this Court’s Regulation Two are not catalogued.

But they certainly exist in a variety of other contexts, protecting

those who use government property. Three generic examples

are libraries, elementary and secondary schools, and colleges.

Public Libraries: Libraries pride themselves on

providing opportunities for children and adults to study and

learn in a quiet, safe environment. To achieve those goals, lib-

raries will revoke library privileges and ban persons who

disrupt those activities, whether by fighting, stealing, drug-

activity. or other inappropriate or offensive behavior. The

trespass laws are used to keep such persons out if they try to

return.

Consider the case of a young adult who seeks out an

enemy gang member at a library and begins an assault. The

library revokes the assailant’s privileges. The assailant returns

and is arrested for trespassing. Under the Virginia Supreme

Court analysis, the assailant could avoid a conviction if the

library used general terms (such as “inappropriate behavior”) or

16

if the branch manager thought she had wide discretion to decide

whose privileges to revoke. This would be the case even

though there had never been a revocation on unconstitutional

grounds, or perhaps not even a revocation at all. Moreover, not

only would the assailant be free to return, but the library would

be unable to exclude anyone from the library whose privileges

were revoked.

Elementary and high schools: Schools face many

potential dangers from outsiders. Drug dealers or pedophiles

may lurk near or on school grounds. Children may be subjected

to kidnaping from bitter, non-custodial parents. Students

expelled or suspended for bringing weapons to school may want

to re-enter school property to settle a score. But schools also

benefit from the presence of outsiders. Schools readily invite

many, including include police officers, judges, and artists, to

speak to classes or assemblies or otherwise interact with

students. And they invite parents and other volunteers, whose

contributions are often critical to the schools’ success.

The policies of many schools contain general

descriptions of who is authorized to be on the school premises.

Given the wide variety of possible non-students and non-

employees who may visit a school, it is quite reasonable to use

a phrase like “legitimate business or social purpose” to describe

who may enter school property. But according to the Virginia

Supreme Court, if a school uses such a description to describe

the classes of persons who are not deemed trespassers, the

trespassers could go unpunished, and the school would find

itself unable to enforce the trespass policy at all.

College campuses: While state-run college campuses

often make portions of their properties available to the public,

there are many portions of the campus that are restricted to

varying degrees. These include laboratories, dormitories, and

administrative offices.

Se

17

The Virginia Supreme Court's holding would be

particularly problematic on college campuses. For instance, a

policy that barred from a women’s dormitory non-residents and

persons without a legitimate social or business purpose for

being there would seem to be invalid under the Virginia court's

test. This would be particularly likely if the policy did not

expressly preclude the possibility of viewpoint discrimination,

such as permitting the lobby to be used for pep rallies to support

the football team but not for demonstrations to discontinue the

football program. If there is a constitutional problem with that

distinction, the problem should not provide a defense to a

trespasser who is stalking a resident. And that perceived defect

should not be a basis for invalidating the trespass policies

altogether, making it impossible to arrest anyone im the

dormitory for trespassing. Facial invalidation is an unwarranted

remedy. .

It is particularly ironic that the Virginia decision would

reduce the protection granted by trespass laws to those present

on college campuses. “The college classroom with its sur-

rounding environs is peculiarly the ‘marketplace of ideas’....”

Healy v. James, 408 U.S. 169, 180-81 (1972), citing Keyishian

v. Board of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New

Hampshire, 354 U.S. 234, 249-250 (1957) (Warren, C.J.,

plurality opinion), 262 (Frankfurter, J., concurring in result).

But it will not remain an effective marketplace if trespass laws

are eliminated as a method of protecting the safety of those who

live and speak on campus. Indeed this Court has recognized

that first amendment rights on campus are for “persons entitled

to be there,” Widmar v. Vincent, 454 U.S. 263, 269 (1981), a

statement that necessarily implies that others may be excluded.

Again, trespass laws and policies are an essential tool in that

exclusion.

18

The threat posed by interlopers seems obvious — and not

just in libraries, in schools, on college campuses, and in court-

houses. Without being graphic, it is easy to imagine real and

substantial harm that would occur if government trespass

policies were broadly invalidated, as the Virginia Supreme

Court’s rule would require. The infestation of drugs and other

crimes in the Housing Authority development is obviously of

great import. When balancing the threat of chilling against the

public safety concerns as advanced by ordinary criminal laws

that only incidentally affect speech, the public safety concern

will typically, if not always, outweigh the concern with chilling.

Indeed, our research revealed no pre-Hicks cases in

which such significant safety concerns were outweighed by the

interests of combating a chilling. In the rare case invalidating

laws pursuant to the overbreadth doctrine, the safety concerns

served by the law at issue are typically less significant than are

those served by ordinary criminal laws. For example, this Court

has invalidated laws under the overbreadth doctrine only a few

times in the last thirty years. And in each instance, the statute

at issue had obvious free speech implications, regulating such

things as the placement of newspaper racks on public

me + oe

” oe

19

sidewalks, parade permits,” or the use of foul language.”

None of those laws implicated serious public safety concerns.

The Virginia Supreme Court’s analysis, if adopted by

this Court, would threaten public safety interests in many

contexts. This Court should not allow the overbreadth doctrine

to be expanded to undercut trespass or other ordinary criminal

laws.

IV. Those who will suffer most from the invalidation of

trespass laws or other public safety laws, persons

who are among the most vulnerable in our society,

should not be burdened with more crime.

Under the Virginia Supreme Court’s standards, law

enforcement tools would be at their weakest where the public

most likely would assume that the vigilance to protect public

safety is greatest. The persons most affected will be those who

live in government-owned public housing. Persons who can

* City of Lakewood, 486 U.S. 750 (1988)(invalidating

ordinance requiring permits for placement of newspaper racks

on public property, with permits issued at the discretion of the

mavor).

** Forsyth County, Ga. v. Nationalist Movement, 505

U.S. 123 (1992)(invalidating parade permit ordinance in which

the permit fee could be varied in the discretion of the

government permitting official).

*° Gooding v. Wilson, 405 U.S. 518, 518, 527

(1972)(invalidating ordinance against use of “opprobrious

words or abusive language ... tending to cause a breach of the

peace,” construed to bar any “words offensive to some who hear

them”).

20

afford to live on private property — in luxury condominiums or

apartment complexes — lose noi trespass protection.

If this Court approves of the low threshold set by the

Virginia Supreme Court, more and more trespass policies will

be invalidated. And more and more criminal trespassers will go

free. The drug-dealer at the public housing complex who seeks

to ensnare new victims cannot be tossed out or arrested unless

caught in the act. The plotting burglar can case a residence with

impunity. The potential assailant can sit and wait indefinitely

for a former girlfriend to emerge from her residence.

The Virginia Supreme Court’s concern with freedom of

speech does not justify the adverse impacts of its holding.

Those who live in an “open-air drug market” will find little

solace in a court’s efforts to protect them the “possible inhibi-

tory effects” on the airing of grievances left to fester.*’ Parti-

cularly when the societal benefit of judicial repeal of policies is

marginal, the courts should not leave the poorest and most

vulnerable members of society to shoulder another burden.

*”” Broadrick, 413 U.S. at 612.

2|

CONCLUSION

The First Amendment overbreadth doctrine should not

be expanded. Before allowing a defendant to invoke the rights

of non-litigants, courts should give great weight to the

legitimate public interests at stake. Failure to do so imposes

unnecessary risks on the poor in public housing and other

persons who live, work, or visit government property.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General

JAMES R. LAYTON

State Solicitor

ERWIN O. SWITZER, Ill

Special Chief Counsel

Counsel of Record

Supreme Court Building

P.O. Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax: (573) 751-0774

Counsel for Amicus Curiae

March 5, 2003