VIRGINIA v. HICKS

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113 OCTOBER TERM, 2002
Syllabus
VIRGINIA v. HICKS
certiorari to the supreme court of virginia
No. 02–371. Argued April 30, 2003—Decided June 16, 2003
The Richmond Redevelopment and Housing Authority (RRHA), a political
subdivision of Virginia, owns and operates Whitcomb Court, a low-
income housing development. In 1997, the Richmond City Council con-
veyed Whitcomb Court’s streets to the RRHA in an effort to combat
crime and drug dealing by nonresidents. In accordance with the terms
of conveyance, the RRHA enacted a policy authorizing the Richmond
police to serve notice on any person lacking “a legitimate business or
social purpose” for being on the premises and to arrest for trespassing
any person who remains or returns after having been so notified. The
RRHA gave respondent Hicks, a nonresident, written notice barring
him from Whitcomb Court. Subsequently, he trespassed there and was
arrested and convicted. At trial, he claimed that RRHA’s policy was,
among other things, unconstitutionally overbroad. The Virginia Court
of Appeals vacated his conviction. In affirming, the Virginia Supreme
Court found the policy unconstitutionally overbroad in violation of the
First Amendment because an unwritten rule that leafleting and demon-
strating require advance permission vested too much discretion in Whit-
comb Court’s manager.
Held: The RRHA’s trespass policy is not facially invalid under the First
Amendment’s overbreadth doctrine. Pp. 118–124.
(a) Under that doctrine, a showing that a law punishes a “substantial”
amount of protected free speech, “in relation to the statute’s plainly
legitimate sweep,” Broadrick v. Oklahoma, 413 U. S. 601, 615, suffices
to invalidate all enforcement of that law “until and unless a limiting
construction or partial invalidation so narrows it as to remove the seem-
ing threat or deterrence to constitutionally protected expression,” id.,
at 613. Only substantial overbreadth supports such facial invalidation,
since there are significant social costs in blocking a law’s application to
constitutionally unprotected conduct. Pp. 118–120.
(b) This Court has jurisdiction to review the First Amendment merits
question here. Virginia’s actual injury in fact—the inability to prose-
cute Hicks for trespass—is sufficiently distinct and palpable to confer
Article III standing. Pp. 120–121.
(c) Even assuming the invalidity of the “unwritten” rule for leafleters
and demonstrators, Hicks has not shown that the RRHA policy prohib-
its a substantial amount of protected speech in relation to its many legit-

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114 VIRGINIA v. HICKS
Syllabus
imate applications. Both the notice-barment rule and the “legitimate
business or social purpose” rule apply to all persons entering Whitcomb
Court’s streets, not just to those seeking to engage in expression. Nei-
ther the basis for the barment sanction (a prior trespass) nor its purpose
(preventing future trespasses) implicates the First Amendment. An
overbreadth challenge rarely succeeds against a law or regulation that
is not specifically addressed to speech or conduct necessarily associated
with speech. Any applications of the RRHA’s policy that violate
the First Amendment can be remedied through as-applied litigation.
Pp. 121–124.
264 Va. 48, 563 S. E. 2d 674, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court. Souter, J.,
filed a concurring opinion, in which Breyer, J., joined, post, p. 124.
William H. Hurd, State Solicitor of Virginia, argued the
cause for petitioner. With him on the briefs were Jerry W.
Kilgore, Attorney General, Maureen Riley Matsen and Wil-
liam E. Thro, Deputy State Solicitors, and Christy A. Mc-
Cormick and A. Cameron O’Brion, Assistant Attorneys
General.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Olson, Assistant
Attorneys General Chertoff and McCallum, James A. Feld-
man, Michael Jay Singer, and Stephanie R. Marcus.
Steven D. Benjamin argued the cause for respondent.
With him on the brief were Amanda Frost, Brian Wolfman,
and Alan B. Morrison.*
*Briefs of amici curiae urging reversal were filed for the City of Rich-
mond et al. by William G. Broaddus, Jonathan T. Blank, William H.
Baxter II, Godfrey T. Pinn, Jr., and John A. Rupp; for the Council of
Large Public Housing Authorities et al. by Robert A. Graham, William
F. Maher, and Carl A. S. Coan III; for the Criminal Justice Legal Founda-
tion by Kent S. Scheidegger; and for the National League of Cities et al.
by Richard Ruda and James I. Crowley.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca
Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M.
Carpenter; for the Richmond Tenants Organization et al. by Catherine

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115 Cite as: 539 U. S. 113 (2003)
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
The issue presented in this case is whether the Richmond
Redevelopment and Housing Authority’s trespass policy is
facially invalid under the First Amendment’s overbreadth
doctrine.
I
A
The Richmond Redevelopment and Housing Authority
(RRHA) owns and operates a housing development for low-
income residents called Whitcomb Court. Until June 23,
1997, the city of Richmond owned the streets within Whit-
comb Court. The city council decided, however, to “privat-
ize” these streets in an effort to combat rampant crime and
drug dealing in Whitcomb Court—much of it committed and
conducted by nonresidents. The council enacted Ordinance
No. 97–181–197, which provided, in part:
“ ‘§ 1. That Carmine Street, Bethel Street, Ambrose
Street, Deforrest Street, the 2100–2300 Block of Sussex
Street and the 2700–2800 Block of Magnolia Street, in
Whitcomb Court . . . be and are hereby closed to public
M. Bishop; for the Thomas Jefferson Center for the Protection of Free
Expression by J. Joshua Wheeler and Robert M. O’Neil; and for Watch-
tower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and
Philip Brumley.
A brief of amici curiae was filed for the State of Alabama et al. by
Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Lay-
ton, State Solicitor, Erwin O. Switzer III, and Michele L. Jackson, Assist-
ant Attorney General of Alabama, and by the Attorneys General for their
respective jurisdictions as follows: Gregg D. Renkes of Alaska, M. Jane
Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana,
Charlie J. Crist, Jr., of Florida, Mike Moore of Mississippi, Jim Petro of
Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, An-
abelle Rodrı´guez of Puerto Rico, Lawrence E. Long of South Dakota, Paul
G. Summers of Tennessee, Greg Abbott of Texas, and Mark L. Shurtleff
of Utah.

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use and travel and abandoned as streets of the City of
Richmond.’ ” App. to Pet. for Cert. 93–94.
The city then conveyed these streets by a recorded deed
to the RRHA (which is a political subdivision of the Com-
monwealth of Virginia). This deed required the RRHA to
“ ‘give the appearance that the closed street, particularly at
the entrances, are no longer public streets and that they
are in fact private streets.’ ” Id., at 95. To this end, the
RRHA posted red-and-white signs on each apartment build-
ing—and every 100 feet along the streets—of Whitcomb
Court, which state: “ ‘NO TRESPASSING[.] PRIVATE
PROPERTY[.] YOU ARE NOW ENTERING PRIVATE
PROPERTY AND STREETS OWNED BY RRHA. UN-
AUTHORIZED PERSONS WILL BE SUBJECT TO AR-
REST AND PROSECUTION. UNAUTHORIZED VEHI-
CLES WILL BE TOWED AT OWNERS EXPENSE.’ ”
Pet. for Cert. 5. The RRHA also enacted a policy authoriz-
ing the Richmond police
“ ‘to serve notice, either orally or in writing, to any
person who is found on Richmond Redevelopment and
Housing Authority property when such person is not a
resident, employee, or such person cannot demonstrate
a legitimate business or social purpose for being on the
premises. Such notice shall forbid the person from re-
turning to the property. Finally, Richmond Redevel-
opment and Housing Authority authorizes Richmond
Police Department officers to arrest any person for
trespassing after such person, having been duly notified,
either stays upon or returns to Richmond Redevelop-
ment and Housing Authority property.’ ” App. to Pet.
for Cert. 98–99 (emphasis added).
Persons who trespass after being notified not to return are
subject to prosecution under Va. Code Ann. § 18.2–119 (1996):
“If any person without authority of law goes upon or
remains upon the lands, buildings or premises of an-

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Opinion of the Court
other, or any portion or area thereof, after having been
forbidden to do so, either orally or in writing, by the
owner, lessee, custodian or other person lawfully in
charge thereof . . . he shall be guilty of a Class 1
misdemeanor.”
B
Respondent Kevin Hicks, a nonresident of Whitcomb
Court, has been convicted on two prior occasions of trespass-
ing there and once of damaging property there. Those con-
victions are not at issue in this case. While the property-
damage charge was pending, the RRHA gave Hicks written
notice barring him from Whitcomb Court, and Hicks signed
this notice in the presence of a police officer.1 Twice after
receiving this notice Hicks asked for permission to return;
twice the Whitcomb Court housing manager said “no.”
That did not stop Hicks; in January 1999 he again trespassed
at Whitcomb Court and was arrested and convicted under
§ 18.2–119.
At trial, Hicks maintained that the RRHA’s policy limiting
access to Whitcomb Court was both unconstitutionally over-
broad and void for vagueness. On appeal of his conviction, a
three-judge panel of the Court of Appeals of Virginia initially
rejected Hicks’ contentions, but the en banc Court of Ap-
peals reversed. That court held that the streets of Whit-
comb Court were a “traditional public forum,” notwithstand-
ing the city ordinance declaring them closed, and vacated
Hicks’ conviction on the ground that RRHA’s policy violated
the First Amendment. 36 Va. App. 49, 56, 548 S. E. 2d 249,
253 (2001). The Virginia Supreme Court affirmed the en
1 The letter stated, in part: “ ‘This letter serves to inform you that effec-
tive immediately you are not welcome on Richmond Redevelopment and
Housing Authority’s Whitcomb Court or any Richmond Redevelopment
and Housing Authority property. This letter is an official notice informing
you that you are not to trespass on RRHA property. If you are seen or
caught on the premises, you will be subject to arrest by the police.’ ” 264
Va. 48, 53, 563 S. E. 2d 674, 677 (2002).

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banc Court of Appeals, but for different reasons. Without
deciding whether the streets of Whitcomb Court were a pub-
lic forum, the Virginia Supreme Court concluded that the
RRHA policy was unconstitutionally overbroad. While ac-
knowledging that the policy was “designed to punish activi-
ties that are not protected by the First Amendment,” 264
Va. 48, 58, 563 S. E. 2d 674, 680 (2002), the court held that
“the policy also prohibits speech and conduct that are clearly
protected by the First Amendment,” ibid. The court found
the policy defective because it vested too much discretion in
Whitcomb Court’s manager to determine whether an individ-
ual’s presence at Whitcomb Court is “authorized,” allowing
her to “prohibit speech that she finds personally distasteful
or offensive even though such speech may be protected by
the First Amendment.” Id., at 60, 563 S. E. 2d, at 680–681.
We granted the Commonwealth’s petition for certiorari.
537 U. S. 1169 (2003).
II
A
Hicks does not contend that he was engaged in constitu-
tionally protected conduct when arrested; nor does he chal-
lenge the validity of the trespass statute under which he was
convicted. Instead he claims that the RRHA policy barring
him from Whitcomb Court is overbroad under the First
Amendment, and cannot be applied to him—or anyone else.2
The First Amendment doctrine of overbreadth is an excep-
tion to our normal rule regarding the standards for facial
challenges. See Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 796 (1984). The show-
ing that a law punishes a “substantial” amount of protected
free speech, “judged in relation to the statute’s plainly legiti-
2 As noted, the Virginia Supreme Court held that invalidity of the
RRHA policy entitled Hicks to vacatur of his conviction under the unques-
tionably valid trespass statute, which Hicks unquestionably violated. We
do not reach the question whether federal law compels this result.

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mate sweep,” Broadrick v. Oklahoma, 413 U. S. 601, 615
(1973), suffices to invalidate all enforcement of that law,
“until and unless a limiting construction or partial invalida-
tion so narrows it as to remove the seeming threat or deter-
rence to constitutionally protected expression,” id., at 613.
See also Virginia v. Black, 538 U. S. 343, 367 (2003); New
York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); Dombrowski
v. Pfister, 380 U. S. 479, 491, and n. 7, 497 (1965).
We have provided this expansive remedy out of concern
that the threat of enforcement of an overbroad law may deter
or “chill” constitutionally protected speech—especially when
the overbroad statute imposes criminal sanctions. See
Schaumburg v. Citizens for a Better Environment, 444 U. S.
620, 634 (1980); Bates v. State Bar of Ariz., 433 U. S. 350, 380
(1977); NAACP v. Button, 371 U. S. 415, 433 (1963). Many
persons, rather than undertake the considerable burden (and
sometimes risk) of vindicating their rights through case-by-
case litigation, will choose simply to abstain from protected
speech, Dombrowski, supra, at 486–487—harming not only
themselves but society as a whole, which is deprived of an
uninhibited marketplace of ideas. Overbreadth adjudica-
tion, by suspending all enforcement of an overinclusive law,
reduces these social costs caused by the withholding of pro-
tected speech.
As we noted in Broadrick, however, there comes a point
at which the chilling effect of an overbroad law, significant
though it may be, cannot justify prohibiting all enforcement
of that law—particularly a law that reflects “legitimate state
interests in maintaining comprehensive controls over harm-
ful, constitutionally unprotected conduct.” 413 U. S., at 615.
For there are substantial social costs created by the over-
breadth doctrine when it blocks application of a law to consti-
tutionally unprotected speech, or especially to constitution-
ally unprotected conduct. To ensure that these costs do not
swallow the social benefits of declaring a law “overbroad,”
we have insisted that a law’s application to protected speech

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be “substantial,” not only in an absolute sense, but also rela-
tive to the scope of the law’s plainly legitimate applications,
ibid., before applying the “strong medicine” of overbreadth
invalidation, id., at 613.
B
Petitioner asks this Court to impose restrictions on “the
use of overbreadth standing,” limiting the availability of fa-
cial overbreadth challenges to those whose own conduct in-
volved some sort of expressive activity. Brief for Petitioner
13, 24–31. The United States as amicus curiae makes the
same proposal, Brief for United States as Amicus Curiae
14–17, and urges that Hicks’ facial challenge to the RRHA
trespass policy “should not have been entertained,” id., at 10.
The problem with these proposals is that we are reviewing
here the decision of a State Supreme Court; our standing
rules limit only the federal courts’ jurisdiction over certain
claims. “[S]tate courts are not bound by the limitations of
a case or controversy or other federal rules of justiciability
even when they address issues of federal law.” ASARCO
Inc. v. Kadish, 490 U. S. 605, 617 (1989). Whether Virginia’s
courts should have entertained this overbreadth challenge is
entirely a matter of state law.
This Court may, however, review the Virginia Supreme
Court’s holding that the RRHA policy violates the First
Amendment. We may examine, in particular, whether the
claimed overbreadth in the RRHA policy is sufficiently “sub-
stantial” to produce facial invalidity. These questions in-
volve not standing, but “the determination of [a] First
Amendment challenge on the merits.” Secretary of State of
Md. v. Joseph H. Munson Co., 467 U. S. 947, 958–959 (1984).
Because it is the Commonwealth of Virginia, not Hicks, that
has invoked the authority of the federal courts by petitioning
for a writ of certiorari, our jurisdiction to review the First
Amendment merits question is clear under ASARCO, 490
U. S., at 617–618. The Commonwealth has suffered, as a
consequence of the Virginia Supreme Court’s “final judgment

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altering tangible legal rights,” id., at 619, an actual injury in
fact—inability to prosecute Hicks for trespass—that is suffi-
ciently “distinct and palpable” to confer standing under Arti-
cle III, Warth v. Seldin, 422 U. S. 490, 501 (1975). We ac-
cordingly proceed to that merits inquiry, leaving for another
day the question whether our ordinary rule that a litigant
may not rest a claim to relief on the legal rights or interests
of third parties, see Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464, 474 (1982), would exclude a case such as this
from initiation in federal court.
C
The Virginia Supreme Court found that the RRHA policy
allowed Gloria S. Rogers, the manager of Whitcomb Court,
to exercise “unfettered discretion” in determining who may
use the RRHA’s property. 264 Va., at 59, 563 S. E. 2d, at
680. Specifically, the court faulted an “unwritten” rule that
persons wishing to hand out flyers on the sidewalks of Whit-
comb Court need to obtain Rogers’ permission. Ibid. This
unwritten portion of the RRHA policy, the court concluded,
unconstitutionally allows Rogers to “prohibit speech that she
finds personally distasteful or offensive.” Id., at 60, 563
S. E. 2d, at 681.
Hicks, of course, was not arrested for leafleting or demon-
strating without permission. He violated the RRHA’s writ-
ten rule that persons who receive a barment notice must not
return to RRHA property. The Virginia Supreme Court,
based on its objection to the “unwritten” requirement that
demonstrators and leafleters obtain advance permission, de-
clared the entire RRHA trespass policy overbroad and
void—including the written rule that those who return after
receiving a barment notice are subject to arrest. Whether
these provisions are severable is of course a matter of state
law, see Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per
curiam), and the Virginia Supreme Court has implicitly de-

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cided that they are not—that all components of the RRHA
trespass policy must stand or fall together. It could not
properly decree that they fall by reason of the overbreadth
doctrine, however, unless the trespass policy, taken as a
whole, is substantially overbroad judged in relation to its
plainly legitimate sweep.3 See Broadrick, 413 U. S., at 615.
The overbreadth claimant bears the burden of demonstrat-
ing, “from the text of [the law] and from actual fact,” that
substantial overbreadth exists. New York State Club Assn.,
Inc. v. City of New York, 487 U. S. 1, 14 (1988).
Hicks has not made such a showing with regard to the
RRHA policy taken as a whole—even assuming, arguendo,
the unlawfulness of the policy’s “unwritten” rule that demon-
strating and leafleting at Whitcomb Court require permis-
sion from Gloria Rogers. Consider the “no-return” notice
served on nonresidents who have no “legitimate business or
social purpose” in Whitcomb Court: Hicks has failed to dem-
onstrate that this notice would even be given to anyone en-
gaged in constitutionally protected speech. Gloria Rogers
testified that leafleting and demonstrations are permitted at
Whitcomb Court, so long as permission is obtained in ad-
vance. App. to Pet. for Cert. 100–102. Thus, “legitimate
business or social purpose” evidently includes leafleting and
demonstrating; otherwise, Rogers would lack authority to
permit those activities on RRHA property. Hicks has failed
to demonstrate that any First Amendment activity falls out-
side the “legitimate business or social purpose[s]” that per-
mit entry. As far as appears, until one receives a barment
3 Contrary to Justice Souter’s suggestion, post, at 124 (concurring
opinion), the Supreme Court of Virginia did not focus solely on the “un-
written” element of the RRHA trespass policy “[i]n comparing invalid
applications against valid ones for purposes of the First Amendment over-
breadth doctrine.” The fact is that its opinion contains no “comparing”
of valid and invalid applications whatever; the proportionality aspect of
our overbreadth doctrine is simply ignored. Since, however, the Virginia
Supreme Court struck down the entire RRHA trespass policy, the ques-
tion presented here is whether the entire policy is substantially overbroad.

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notice, entering for a First Amendment purpose is not a
trespass.
As for the written provision authorizing the police to ar-
rest those who return to Whitcomb Court after receiving
a barment notice: That certainly does not violate the First
Amendment as applied to persons whose postnotice entry is
not for the purpose of engaging in constitutionally protected
speech. And Hicks has not even established that it would
violate the First Amendment as applied to persons whose
postnotice entry is for that purpose. Even assuming the
streets of Whitcomb Court are a public forum, the notice-
barment rule subjects to arrest those who reenter after tres-
passing and after being warned not to return—regardless of
whether, upon their return, they seek to engage in speech.
Neither the basis for the barment sanction (the prior tres-
pass) nor its purpose (preventing future trespasses) has any-
thing to do with the First Amendment. Punishing its viola-
tion by a person who wishes to engage in free speech no
more implicates the First Amendment than would the pun-
ishment of a person who has (pursuant to lawful regulation)
been banned from a public park after vandalizing it, and who
ignores the ban in order to take part in a political demonstra-
tion. Here, as there, it is Hicks’ nonexpressive conduct—
his entry in violation of the notice-barment rule—not his
speech, for which he is punished as a trespasser.
Most importantly, both the notice-barment rule and the
“legitimate business or social purpose” rule apply to all per-
sons 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 watch-
ers, soccer players, and others not engaged in constitution-
ally protected conduct—a group that would seemingly far
outnumber First Amendment speakers. Even assuming in-
validity 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

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124 VIRGINIA v. HICKS
Souter, J., concurring
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, supra, at 615. 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 invali-
date 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.
* * *
For these reasons, we reverse the judgment of the Virginia
Supreme Court and remand the case for further proceedings
not inconsistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Breyer joins,
concurring.
I join the Court’s opinion and add this afterword to flag
an issue of no consequence here, but one on which a future
case might turn. In comparing invalid applications against
valid ones for purposes of the First Amendment overbreadth
doctrine, the Supreme Court of Virginia apparently assumed
that the appropriate focus of the analysis was the “unwrit-
ten” element of the housing authority’s trespass policy, that
is, the requirement that nonresidents distributing literature
or demonstrating on the property obtain prior authorization.

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Souter, J., concurring
264 Va. 48, 58–60, 563 S. E. 2d 674, 680–681 (2002) (finding
that the “unwritten” portion of the policy, although designed
to punish unprotected activities, allowed the housing man-
ager to prohibit protected speech “that she finds personally
distasteful or offensive” and “speech that is political or reli-
gious in nature”). We, on the other hand, take a broader
view of the relevant law, by looking to the potential applica-
tions of the entire trespass policy, written and unwritten.
Ante, at 121–124. It does not matter here, however, which
position one takes on the appropriate “law” whose over-
breadth is to be assessed, for there is no substantial over-
breadth either way. Regardless of the scope of the law that
forms the denominator of the fraction here, the numerator of
potential invalid applications is too small to result in a find-
ing of substantial overbreadth. But in other circumstances,
the scope of the law chosen for comparison with invalid ap-
plications might decide the case. It might be dispositive
whether, say, a city’s speech ordinance for a public park is
analyzed alone or as one element of the combined policies
governing expression in public schoolyards, municipal ceme-
teries, and the city council chamber. Suffice it to say that
today’s decision does not address how to go about identifying
the scope of the relevant law for purposes of overbreadth
analysis.