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The U.S. Supreme Court on April 30 took up the issue of whether a public housing project’s trespassing policy that barred nonresidents from the streets and sidewalks running through the crime-ridden development violated the First Amendment. The case, Commonwealth of Virginia v. Kevin Hicks, stems from the 1999 misdemeanor conviction of 27-year-old Kevin Hicks, who was charged with trespassing while allegedly carrying diapers for his child in the Whitcomb Court housing project in Richmond, Va. Hicks, who did not live in the project, had been banned from the premises by Whitcomb Court’s property manager. The state of Virginia petitioned the U.S. Supreme Court last year after the Virginia Supreme Court found that the trespassing policy violated the First Amendment because it gave government officials the authority to decide who had a right to speak on the streets and sidewalks of Whitcomb Court. The Virginia attorney general’s office claimed that Hicks should not have been allowed to make a First Amendment challenge to the policy because his conduct was not expressive. The 1997 trespass policy — an effort to crack down on open-air drug markets and other crime in the project — states that nonresidents who fail to get housing officials’ approval to be on the premises or cannot prove that they have a “legitimate purpose” for being there are subject to arrest and prosecution. While the case raises a host of questions over the policy — including the privatization of public streets and sidewalks and the role of the government as landlord — its outcome before the Court may hinge on a more procedural factor. The justices focused on the so-called overbreadth doctrine, which allows a person to make First Amendment claims for a future third party. Among the legal challenges Hicks used against the trespass policy was the notion that the policy was unconstitutional because it could be used to stifle First Amendment-protected expression on the public housing grounds. At oral argument, Virginia State Solicitor William Hurd and federal Deputy Solicitor General Michael Dreeben argued that Hicks should not be permitted such a challenge because the trespass law was aimed at conduct, not speech. Hicks’ lawyer, Steven Benjamin, argued that “overbreadth” wasn’t the only basis on which to strike down the policy. Benjamin asserted that the policy failed to pass constitutional muster because it was too vague. Benjamin suggested that the policy also had to be found unconstitutional because it was being applied to the public streets and sidewalks of the housing project. Some justices clearly were confused by the trespass policy. Hurd said the “No Trespassing” signs that promised arrest and prosecution were intended only to keep out drug-dealers, wife-beaters, and people who damage property or steal. Anyone else who can demonstrate a “lawful” reason for being there is OK, Hurd said. Justices John Paul Stevens and David Souter, however, said they read the policy — as it appears on signs throughout the development — to be more restrictive than that. “I’m assuming it’s excluding anyone who is not a resident, and those who don’t have authority can be arrested,” Souter said. At that, Justice Antonin Scalia asked, “Are the signs being challenged?” But the majority of questions centered on whether Hicks had standing to bring a First Amendment challenge to the policy. “I think it’s a mistake to put too much on the First Amendment,” Justice Anthony Kennedy warned Benjamin. “It tends to trivialize the First Amendment. It seems to me for you to rest this case on First Amendment questions, that’s not the right way to proceed in this case.” Benjamin tried to argue that the lower courts didn’t decide the case based upon the overbreadth doctrine, but Chief Justice William Rehnquist pointed out that one of the dissenting judges in the Virginia Supreme Court decision did just that. Kennedy said that other challenges to the policy would still be available to Hicks if the case were sent back to the Virginia Supreme Court. The justices were not sympathetic to Benjamin’s assertion that Hicks — who has a lengthy arrest record that includes domestic violence — was in the midst of a good deed when stopped by police. “I think you’re painting a somewhat false picture that this man was a loving father who was simply trying to visit his children,” Justice Ruth Bader Ginsburg said.

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