Virginia v. Hicks

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In Virginia v. Hicks, 539 U.S. 113 (2003), a unanimous U.S. Supreme Court held that an anti-trespass ordinance for a housing development for low-income residents was not facially invalid under the First Amendment.

This decision is often cited for its following holding:[1]

"The First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges."

Justice Antonin Scalia wrote the opinion for the Court. He declared that the ordinance rules:

apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression. 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. Even assuming invalidity of the "unwritten" rule that requires leafleters and demonstrators to obtain advance permission from Gloria Rogers, Hicks has not shown, based on the record in this case, that the RRHA trespass policy as a whole prohibits a "substantial" amount of protected speech in relation to its many legitimate applications. That is not surprising, since the overbreadth doctrine's concern with "chilling" protected speech "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct." Broadrick, 413 U.S., at 615, 37 L Ed 2d 830, 93 S Ct 2908. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating). Applications of the RRHA policy that violate the First Amendment can still be remedied through as-applied litigation, but the Virginia Supreme Court should not have used the "strong medicine" of overbreadth to invalidate the entire RRHA trespass policy. Whether respondent may challenge his conviction on other grounds--and whether those claims have been properly preserved--are issues we leave open on remand.

Justice David Souter concurred separately, joined by Justice Stephen Breyer.


  1. 539 U.S. at 118 (citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984)).