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May
7, 2003
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May
8, 2003
When Going to See
Your Son is a Crime
Public Housing,
Trespassing Laws & Social Control
by JULIE HILDEN
On Wednesday, April 30, the Supreme Court heard
oral argument in Virginia v. Hicks. In the case, Kevin Hicks
argues that his convictions for trespassing--based on a Richmond,
Virginia housing authority's policy--violate the First Amendment.
Hicks says the policy tends to suppress
political speech, and other forms of constitutionally protected
expression, and therefore, it can't be applied to anyone, including
him. But the state of Virginia says that since it wasn't Hicks's
own speech that was suppressed, he doesn't have a right to challenge
his conviction on First Amendment grounds.
The Court's resolution of the case could
likely turn on a very technical, but interesting doctrine under
the First Amendment, regarding who may bring suit in such case.
In addition, it may touch on how differently the government may
treat public housing residents, as compared to those who own
or rent privately.
The Basic Facts of
Virginia v. Hicks
The case arose because the Richmond housing
authority owned the streets within Whitcomb Court, a low-income
housing development. The Authority feared the streets were turning
into an "open-air drug market," largely due to the
activities of non-Whitcomb-Court-residents.
Accordingly, the Authority developed
a policy of denying access to any nonresident who does not have
what its Housing Manager deemed a legitimate reason to visit
the development. It also marked the limits of the area with "No
Trespassing: Private Property" signs warning that "Unauthorized
persons will be subject to arrest and prosecution."
There were no written policies or procedures
governing the Housing Manager's decisions regarding who had access--even
if the person seeking access wanted to distribute flyers or engage
in other First-Amendment protected activity.
Hicks, however, apparently was not interested
in distributing flyers, or otherwise exercising his First Amendment
rights. Instead, it seems that he just wanted to visit his son--to
whom, on this occasion, he was trying to deliver diapers. (There
may be a constitutional right to access to one's children, but
it's probably not a First Amendment right. The First Amendment
does establish a right of association, but it's usually interpreted
as a right to associate for political purposes.)
Overbreadth: The Technical
Issue that May Resolve the Case
How, then, can Hicks sue under the First
Amendment? The answer is that, in the First Amendment context,
there is a special doctrine called "overbreadth." The
overbreadth doctrine allows a person to attack a statute as a
whole as unconstitutional, even if the way it was applied to
him is entirely constitutional--as long as lots of its other
applications are unconstitutional.
To determine whether a plaintiff such
as Hicks can bring an overbreadth claim, the court must decide
whether there are other applications of the housing policy, that
also suppress First Amendment-protected speech. Does the policy
mostly serve another purpose, that only impacts speech in minor
respects? Or does it mostly serve the goal of suppressing speech?
If the Court decides that the policy does the latter, then the
overrbreadth doctrine could apply.
This comparison is inherently pretty
speculative. But for some statutes, the answer is relatively
clear. For example, a statute that said "Don't put anything
on the Whitcomb Court bulletin boards" would predominantly
target speech. A statute that said "Don't deal drugs in
Whitcomb Court or you'll be banished forever" would predominantly
target crime.
How the Overbreadth
Doctrine May Apply in Hicks's Case
So is the housing policy from the Hicks
case closer to "Don't post anything on the bulletin boards"
or "Don't deal drugs or you'll be banished"? It's hard
to tell, because there is no written policy. Instead, there is
just the Housing Manager--sometimes with the help of higher-ups
at the Housing Authority--exercising personal judgment when deciding
whether visitors have a good enough reason to enter the development.
And among the visitors, there will doubtless
be some drug dealers, some conscientious dads, some people who
just want to hang out with friends, and some people campaigning
for local, state and national elections and other political causes.
Interestingly, the people who just want
to hang out may not be protected by the First Amendment. In the
1972 case of Papachristou v. City of Jacksonville, the Court
made clear that there was no written Constitutional protection
for "loafing" and "loitering." (Nevertheless,
the opinion-- written by Justice Douglas--invoked Whitman and
Thoreau, applauding these activities as having "been in
part responsible for giving our people the feeling of independence
and self-confidence, the feeling of creativity." Douglas
also complimenting hanging out as being part of a health nonconformism--"lives
of high spirits rather than hushed, suffocating silence.")
In light of these predictions and this
precedent, how will the proportion of First Amendment-protected
visitors to Whitcomb Court compare to the proportion of other
visitors? The honest answer is: Who can really know?
Hicks Should Be Allowed
to Challenge The Housing Authority's Lawless Discretion
So should Hicks be allowed to sue, under
the overbreadth doctrine, or not? I believe he should.
Importantly, the burden of the fact that
this question is so hard to answer can be put on the shoulders
of the Housing Authority itself. If it had bothered to have separate
policies for suspected drug dealers, political candidates, and
diaper-carrying dads, and to say which it was applying, the answer
would be a lot clearer. In that instance, Hicks-- the diaper-carrying
dad--might have another kind of case, though not a First Amendment
one.
This whole dynamic explains why it makes
sense to let Hicks sue, even if his own First Amendment rights
were not violated. After this suit, if Hicks wins, the Housing
Authority is probably going to have to develop written policies,
rather than vesting unchecked discretion in a single decisionmaker--a
system that always invites abuse. In short, it will have to operate
under law, not whim. And Hicks will be able to take credit for
that.
Once the specific, written policies have
been put in place, though, it's probable that only those whose
speech rights have been violated will be able to bring First
Amendment cases in the future. This interesting dynamic--by which
overbreadth cases tend not to be repeated in the same context--naturally
limits the doctrine's use. The very clarity overbreadth cases
bring makes future overbreadth cases unlikely.
Beyond the First Amendment:
Created Gated Public Housing
In the end, however, the most outrageous
aspect of the Housing Authority policy may be only partially
tied to the First Amendment. It is this: In order to gain more
control over public housing residents, a public Housing Authority
has tried to privatize previously public streets by purchasing
them from the City of Richmond, and screening who may visit its
residents.
It's one thing for private citizens to
decide that they want to jointly live in a gated community that
is run condo-style, with a security guard at the gate. It's another
thing entirely when private citizens--who are forced by economic
circumstances or personal crises to live in public housing--must
live under a "gated community" policy for which they
did not vote, and which they may not like.
Can't Virginia fight drug dealing without
a lockdown on public housing areas? It's prisoners whose visitors
can typically be regulated--not ordinary citizens.
Moreover, even if residents were to vote
for the policy, isn't there something to be said for the idea
that space that is publicly owned is inherently public space?
Certainly access restrictions that required a "legitimate
purpose"-- as determined by an official with complete discretion--to
visit public libraries or the museums on Washington's Mall would
be anathema. If loitering and loafing are creative activities
too, as Justice Douglas saw them, shouldn't the streets also
be free to all?
Julie Hilden
practiced First Amendment law at the D.C. law firm of Williams
& Connolly from 1996-99. Currently a freelance writer, she
published a memoir, The
Bad Daughter, in 1998. Her forthcoming novel Three
will be published in the U.S. in August 2003 by Plume Books,
in the U.K. by Bantam, and in French translation by Actes Sud.
This column originally appeared on Findlaw's
Writ. She can be reached at: hilden@counterpunch.org.
Julie's new
website is a lot of fun. Have a look.
Today's
Features
Alexander
Cockburn
Quoting Under the Influence: Breasts,
Martinis, Hitchens
David
Krieger
Winning the War; Alienating the World
Sen.
Robert Byrd
Bush's Troubling Speech
Bruce Jackson
Bill Kunstler's Last Big Speech
Steve
Perry
Bush's War Web Log 5/07
Website
of the Day
The Truth About Bush's Military Records
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