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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to criminal justice in order to protect and advance the rights of victims of crime and the law-abiding public.

The opinion of the Virginia Supreme Court in the present case threatens the ability of public housing authorities to protect some of the most vulnerable people in America from the domination of violent, drug-dealing criminal gangs. The state court reached this result in an opinion which seriously misunderstands and misstates this Court's First Amendment jurisprudence. Genuine freedom of speech can be fully protected with far less violence to the state's ability to protect the residents of public housing. The state court's unnecessary hindrance of that ability is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Whitcomb Court is a public housing development owned by the Richmond Redevelopment and Housing Authority (RRHA). To improve the safety of Whitcomb Court, RRHA and the City of Richmond attempted to "privatize" the streets surrounding and adjacent to the project. Hicks v. Commonwealth, 36 Va. App. 49, 52, 548 S. E. 2d 249, 251 (2001). The city adopted an ordinance deeding the streets to RRHA. Id., at 52-53, 548 S. E. 2d, at 251. The ordinance provided that those streets were to be closed to public use and travel. Id., at 52, 548 S. E. 2d, at 251. Although those streets and sidewalks were not physically blocked off and remained open to vehicular and pedestrian traffic, "private property, no trespass" signs were posted every 100 feet on each block. Id., at 53, 548 S. E. 2d, at 251. After the streets were deeded, RRHA adopted a "barment-trespass procedure" to keep "unauthorized persons" from entering Whitcomb Court property. Ibid. This policy authorized sworn city police officers to enforce Virginia's trespass laws on the deeded streets against unauthorized persons. Id., at 53, 548 S. E. 2d, at 251-252. Authorized persons include residents, employees of Whitcomb Court, and those who can "demonstrate a legitimate business or social purpose for being on the premises." Id., at 53, 548 S. E. 2d, at 252.

In 1998, the defendant, Kevin Hicks, had been banned from Whitcomb Court property after being twice convicted of trespassing and of damaging Whitcomb Court property. Id., at 54, 548 S. E. 2d, at 252. In January 1999, Hicks was seen on one of the "privatized" streets adjacent to Whitcomb Court and was cited for trespassing. Ibid. He was later convicted of the charge in general district court. Id., at 55, 548 S. E. 2d, at 252. Hicks appealed to the circuit court of the City of Richmond and filed a motion to dismiss the trespass charge on the ground that RRHA's trespass policy violated the First and Fourteenth Amendments. Ibid. The circuit court denied the motion and found Hicks guilty of trespass. Ibid.

Hicks appealed the judgment to the Virginia Court of Appeals. Commonwealth v. Hicks, 264 Va. 48, 51, 563 S. E. 2d 674, 676 (2002). A panel of the Court of Appeals affirmed the judgment, but the court en banc reversed, holding that the streets remained public forums, and that RRHA's trespass policy violated the First and Fourteenth Amendments as applied to public forum property. Ibid. The Virginia Supreme Court affirmed on the basis that RRHA's trespass policy was overly broad, without resolving the public forum status of the streets. Id., at 60, 563 S. E. 2d, at 681.

This Court granted Virginia's certiorari petition on January 24, 2003.

SUMMARY OF ARGUMENT

The Virginia Court of Appeals in the present case asked the correct question and narrowly divided on the answer. The critical question is whether the City of Richmond successfully terminated the "public forum" status of the streets in question. The Virginia Supreme Court's decision that the trespass policy is invalid regardless of whether the streets are a public forum is not a "narrow" decision, as the opinion claims, but rather is a broad, damaging, and incorrect decision.

Crime in public housing projects today devastates the lives of those who must live there. The efforts undertaken by public housing authorities to protect the residents from crime are vitally important, and any proposed rule which would interfere with those efforts, such as the one adopted by the Virginia Supreme Court in the present case, requires the closest scrutiny.

The Virginia Supreme Court has confused the overbreadth doctrine with the vagueness doctrine. Overbreadth as such is not a constitutional defect, but rather the basis for holding a statute void in its entirety when it has some valid applications and some invalid applications. The overbreadth doctrine should not be applied when the chilling effect on protected speech can be eliminated by cleanly severing the valid from the invalid applications. If any of the property of Whitcomb Court is found to be a public forum, the trespass policy should remain in effect for the nonpublic portion, just as the statute at issue in United States v. Grace remains in effect for all of the grounds of this Court except the sidewalks adjacent to the public streets.

The "excessive discretion" line of cases does not apply to nonpublic forum property. This is the heart of the distinction between public and nonpublic forums. The Virginia Supreme Court's holding that it can resolve this point without deciding whether the property is a public forum disregards the clear holdings of this line of cases. While the discretion to exclude speakers from a nonpublic forum has limits, and the application of the discretion may be subject to judicial scrutiny, the existence of such discretion does not make the trespass policy invalid and does not support a facial challenge.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.