In a unanimous opinion, the Supreme Court held in Virginia v. Hicks, 539 U.S. 113 (2003), that the policy of the Richmond Redevelopment and Housing Authority (RRHA) barring nonresidents from a public housing community unless they could “demonstrate a legitimate business or social purpose for being on the premises” was not facially invalid under the First Amendment’s overbreadth doctrine. The Court emphasized in Hicks that overbreadth challenges would succeed only if a government regulation burdens substantial amounts of constitutionally protected activity.

In an effort to combat crime, the city of Richmond, Virginia, passed the ownership and operation of certain public streets in Whitcomb Court, a public housing community, to the Richmond Redevelopment and Housing Authority, a political subdivision of Virginia. The RRHA then adopted a trespass policy that barred nonresidents who could not prove that they had legitimate business or a social reason for being on the premises. Kevin Hicks challenged the policy after he was charged and convicted of trespassing. Hicks, who had two previous trespassing convictions, claimed he was delivering diapers to the mother of his child.

Hicks appealed his conviction, and the Virginia Court of Appeals, in an en banc decision, reversed. The court ruled that the streets in Whitcomb Court were a “traditional public forum.” The Virginia Supreme Court also ruled in favor of Hicks, finding that the trespass policy was too broad.

On further appeal, the Supreme Court unanimously reversed the Virginia Supreme Court and upheld the trespass policy. Writing for the majority, Justice Antonin Scalia ruled that Hicks failed to show that the trespass policy infringed on a substantial amount of protected speech. “The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct — a group that would seemingly far outnumber First Amendment speakers.”

Scalia reasoned that the policy could be challenged on an as-applied basis, but that the Court would not strike down the policy pursuant to a facial overbreadth challenge. In a concurring opinion, Justice David H. Souter agreed that the number of “potential invalid applications [of the policy] is too small to result in a finding of substantial overbreadth.”

In his majority opinion, Scalia concluded that Hicks could pursue his other constitutional challenges to the policy on remand. In Commonwealth v. Hicks (Va. 2004), the Virginia Supreme Court rejected Hicks’s freedom of association and vagueness challenges.

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