William H. Rehnquist: We'll hear argument first this morning in No. 02-371, Virginia v. Kevin Lamont Hicks. Mr. Hurd.
William H. Hurd: Mr. Chief Justice, and may it please the Court: Before this trespass policy took effect, the families in Whitcomb Court lived in the middle of an open-air drug market. Surely those who must rent from public housing ought not be required by the law to live in greater danger from criminals than those who rent from private landlords. And yet, that is the consequence of the decision below and its mistaken application of the First Amendment. This defendant is a common trespasser, not engaged in any expressive activity. The court below struck down the trespass policy only by indulging in an extravagant expansion of the overbreadth doctrine.
Sandra Day O'Connor: Well, was... was the State applying some State law notion of standing, because certainly Virginia can have different rules for standing than the Federal court might have.
William H. Hurd: There is absolutely no indication in the record, Your Honor, that the State supreme court was doing anything other than applying what it thought was this Court's overbreadth jurisprudence.
Sandra Day O'Connor: Well, but on... on the matter of standing, would we necessarily assume they were applying some Federal standard?
William H. Hurd: Your Honor, you don't need to assume that in this case. They... they discussed the question of standing in their opinion, and they referred to this Court and this Court's traditional rule and the overbreadth rule, never suggesting for a moment that they thought Virginia might have a more generous rule of standing than this Court has required.
Antonin Scalia: Did they cite our cases?
William H. Rehnquist: There's... there's no--
William H. Hurd: They did.
William H. Rehnquist: --There's no citation of any Virginia case in the opinion, is there?
William H. Hurd: There is no citation when discussing the... the standing issue, the overbreadth issue at all. That's correct, Your Honor. They... they cite this Court's cases, and this is found joint appendix page 159. It says the Supreme Court... and I'm quoting now from the second complete paragraph... the Supreme Court has held that in the context of a First Amendment challenge, a litigant may challenge government action granting government officials standardless discretion even if that government action as applied to the litigant is constitutionally permissible. They then cite this Court's decision in Los Angeles Police Department. They then go on to cite this Court's decision in Ferber and in Broadrick and in Gooding v. Wilson and in Dombrowski and in Thornhill, never suggesting for a moment that Virginia has a more generous notion of overbreadth standing--
Ruth Bader Ginsburg: But if we were to hold for you on that ground, the Virginia Supreme Court would be free to say on remand, would it not, that it has decided to take a more generous view of standing?
William H. Hurd: --It certainly could do that, Your Honor. The Virginia Supreme Court has historically adhered very closely in its interpretation of the State constitutional standards to the standards laid down by this Court under the Federal Constitution.
David H. Souter: But when we're not talking about substantive law, why is that really an... an issue for us?
William H. Hurd: Well, Your Honor--
David H. Souter: They can do what they want. It's their courts.
William H. Hurd: --Your Honor, they... they believe they are required by this Court's jurisprudence to grant--
David H. Souter: Well, but they didn't say that here. I mean, they didn't say the Supreme Court requires this and our standing doctrine would be narrower, but we feel we must. I mean, we... we just don't know.
William H. Hurd: --Your Honor, I believe we... we do know based on the portions of the record I read. They relied solely upon this Court's overbreadth standing jurisprudence.
David H. Souter: Well, they... they did with respect to... to substantive law... the substantive doctrine overbreadth. But at no point did they say, we would not entertain this matter if it were brought under State law, but we are required to do so by the Supreme Court's substantive doctrine.
William H. Hurd: Your Honor, I... I think of the... the recently decided case of Virginia v. Black cross burning where in that case the criminal defendant raised claims under both Federal and State law. It decided it under the Federal. It did not decide it under the State.
Antonin Scalia: Mr. Hurd, that's not the issue anyway, is it, whether they would have had a narrower interpretation under State law?
William H. Hurd: No, Your Honor--
Antonin Scalia: The issue is whether... whether they adopted a broader interpretation under State law than Federal law would require.
William H. Hurd: --That's--
Antonin Scalia: Isn't that the issue?
William H. Hurd: --That's correct, Your Honor.
Antonin Scalia: There's no indication that they were adopting a broader interpretation than Federal law requires.
William H. Hurd: That is correct. A... a State may well be able to adopt a broader interpretation of standing than this Court requires, but it cannot adopt a narrower interpretation. It cannot disregard this Court's direction that you give overbreadth standing according to the Federal constitutional standards, according to this Court's standards. There's nothing in the record to suggest at all that it was adopting a broader interpretation. It said that this Court... I'm paraphrasing, of course. But it says this Court's standing rule... its traditional standing rules do not apply in these overbreadth cases, and then it cites this Court's decisions.
Antonin Scalia: And if they were correct about what our standing rules are, they would have to follow those standing rules, wouldn't they? They could not apply a narrower--
William H. Hurd: That's--
Antonin Scalia: --basis for standing, could they?
William H. Hurd: --That is absolutely correct, Your Honor. The State supreme court has no discretion to disregard this Court's application of the First Amendment through its overbreadth doctrine. Here, what happened--
John Paul Stevens: If they... if they were wrong in interpreting our cases, they still could have done exactly that they did.
William H. Hurd: --They could have, Your Honor, but there's no indication that they did.
John Paul Stevens: They didn't say so.
William H. Hurd: They didn't say so.
John Paul Stevens: So if we sent it back and then they said so, then we'd have to take the case and decide whether they're right or wrong on the merits.
William H. Hurd: That's correct, Your Honor.
John Paul Stevens: Yes.
Stephen G. Breyer: I'm not sure why we... why it's called standing. That's where I'm basically mixed up in this case. The person has nothing to do with speech, the particular defendant. It's sort of like a person who has a gun under a gun statute that forbids it. And he wants to say that this law is unconstitutional because it might apply to people who were petitioning, and if it did, it wouldn't do it right. It might apply to people who were speaking. It might apply to speech, just as the gun law might apply to people who have a gun in a theater in a part of a play. And he wants to say that this law is unconstitutional as applied to him because of that problem with it. And in the gun case, it would be apparent that the law wouldn't be unconstitutional as applied to him because in most of its applications, it would be constitutional and he has nothing to do with speech. And now you want to say, that's true here, too.
William H. Hurd: Absolutely, Your Honor.
Stephen G. Breyer: Well, why aren't you and he arguing on the merits of a constitutional matter, whether this statute is or is not unconstitutional because of the possibility that it could be badly applied in a free speech area that isn't this one?
William H. Hurd: Well--
Stephen G. Breyer: Why isn't that the merits? Why is it standing?
William H. Hurd: --Well, Your Honor, there are a number of problems with... with Mr. Hicks' case, one of which is exactly the one you described. We think that there are several aspects of that. We think one aspect of standing. We think another aspect is that this Court's practice has been not to allow overbreadth challenges to be brought in cases where it was not a... a speech-related statute or a statute governing something closely related to speech.
Antonin Scalia: Mr. Hurd, we don't normally decide whether a statute is constitutional in the abstract, do we? I thought we normally decided whether someone has been unconstitutionally convicted. We don't go around bashing statutes in their totality. We say this person was unconstitutionally convicted.
William H. Hurd: That's correct, Your Honor. And... and certainly--
Antonin Scalia: And that's why it's... it's a question of third-party standing whether you can say I was unconstitutionally convicted because if you applied this statute to somebody else, he would be unconstitutionally convicted.
William H. Hurd: --It... that is certainly our argument, Your Honor. Standing is one problem with Mr. Hicks' case. But even if he had standing, there's a problem here of not meeting the requirement that alleged overbreadth be substantial. In fact, the State supreme court didn't address this prong of the overbreadth doctrine at all. And it's clear, we believe, that even if there were some possible unconstitutional application of this policy, that the overbreadth would not be substantial. The legitimate sweep of this policy is very broad. It sweeps up those who come to Whitcomb Court to deal drugs and batter women and damage property and steal and intimidate and try to make this property their turf.
John Paul Stevens: I didn't think it was limited to those people. I thought it was a total ban on people coming in without permission.
William H. Hurd: Your Honor, that is... that is not exactly the... what the policy says. The--
John Paul Stevens: Well, what does the policy ban?
William H. Hurd: --The policy is--
John Paul Stevens: It doesn't just ban drug dealers, does it?
William H. Hurd: --No, Your Honor, but in terms of... of the legitimate sweep, if we tried to contrast the legitimate sweep of the policy--
John Paul Stevens: Well, I... let's say it's legitimate to keep all the drug dealers and all the armed robbers out, but... but how many other people does it keep out? That's what I was curious about.
William H. Hurd: --Well, Your Honor, we believe that the risk that any legitimate speaker will be chilled is... is very small. In fact, you know, the policy was developed to chase away the ne'er-do-wells I have described, and if we're unable to remove the criminals, it would not be safe for people to come and engage in speech.
John Paul Stevens: But doesn't the no trespassing sign apply to everybody? It doesn't just apply to ne'er-do-wells, does it?
William H. Hurd: Your Honor, it... it does not apply to... just to ne'er-do-wells, and the problem is how do you know until you actually catch them in the act of dealing drugs?
William H. Rehnquist: Well, it applies to... it does not apply to someone who is coming to see someone in the housing development, as I understand it.
William H. Hurd: That's correct, Your Honor. The... the policy is explained by Gloria Rogers, the housing manager, on page 32 of the joint appendix. There's a question and an answer at the bottom. If a nonresident... question... if a nonresident is seen on privatized public housing property and he cannot demonstrate that he is either visiting a lawfully residing resident or conducting legitimate business, is he an authorized... an unauthorized person?
Antonin Scalia: Which, as far as the text of the ordinance is concerned, legitimate business could include pamphleting.
William H. Hurd: It... it certainly could, Your Honor.
Antonin Scalia: As far as the text is concerned.
William H. Hurd: Absolutely. It all could be included under the concept of visiting residents, going door to door to visit them and hand them material.
William H. Rehnquist: If... if we agree--
Antonin Scalia: --It wasn't the interpretation by one of the administrators that leafleting was not ipso facto legitimate businessing, or pamphleting or whatever. Isn't that right?
William H. Hurd: Your Honor, we would characterize that not so much as an interpretation of the written policy as an addendum--
Antonin Scalia: An addendum.
William H. Hurd: --an addendum to it which requires the demonstration of legitimate purpose, which is discussed in the policy, which would require that demonstration be made to the housing manager to show that the leafleting is legitimate. That--
Anthony M. Kennedy: Suppose... and suppose I... the... the Court were to agree with you that the speech analysis, particularly the overbreadth analysis here, was wrong. Does the case then go back to the Supreme Court of Virginia in a posture where Mr. Hicks has the opportunity to challenge the ordinance as being unconstitutional for other reasons apart from the First Amendment? It's vague. It inhibits his right of... of movement. These are streets that are the functional equivalent of a public, whatever. Does he have all of those issues preserved to him on remand?
William H. Hurd: --Your Honor, he certainly has this... this due process right to wander issue preserved. There's a question that the State supreme court did not address, which is whether these streets and sidewalks are a traditional public forum or a nonpublic forum. And he has certainly asserted the right to... to be there... the right to--
Anthony M. Kennedy: And in the context of that, to say that the ordinance is vague for other reasons.
William H. Hurd: --That would be a substantive due process challenge there. He also has raised below a... a vagueness challenge. It's a little different than the one he raises here. But he would have that available to him as well. So that the... the only... Your Honor, the... the only argument he raised below in the State supreme court that would... that would not be available to him upon remand would be the one decided by this Court. And all the other issues he pressed below before the State supreme court he could press again.
Ruth Bader Ginsburg: Mr. Hurd--
David H. Souter: --Mr. Hurd, could we go back just to Justice Stevens' question for a minute? And I... I just want to... I want you to comment on the significance of the... of the... the notice that you set out on page 5 of your brief. The notice says: no trespassing, private property, you are now entering private property and streets, et cetera. That sounds to me as though it... it means, as... as a no trespassing sign normally would, that if you are not a... the landowner or a licensee of the landowner specifically, you're not supposed to enter. Then it goes on to say, unauthorized persons, which I take it anybody who is not authorized to enter, will be subject to arrest and prosecution. So in answer to Justice Stevens' question, if... if that notice, which is posted all over the... the area, is a statement of policy, I assume it is excluding everybody--
William H. Hurd: No, Your Honor, it's not.
David H. Souter: --who is not a resident. And... and it then goes on to say that following some review for what may or may not be authority, people coming in can be arrested and prosecuted.
William H. Hurd: No, Your Honor. The... the policy is not intended to convey the idea--
David H. Souter: No, but is that what this says? If we... if we stick simply to the notices that you've put up, isn't that, in effect, the burden of the notices that you've put up?
William H. Hurd: --No, Your Honor, I do not believe that's the case. I believe that... that the phrase unauthorized persons calls into question, well, who... who is authorized and--
David H. Souter: Well, but before we get to that, it says, no trespassing. And doesn't that normally mean that if you are not the landowner or a licensee, you're trespassing?
William H. Hurd: --Your Honor, in the context of a private apartment complex, it would not mean that. A private apartment complex or a public apartment complex where a tenant has a leasehold interest has the right to invite people to come to that premises without having to have the landlord grant permission.
Antonin Scalia: Is it the signs that are under challenge here, or is it the ordinance?
William H. Hurd: It is... it is not the signs.
Antonin Scalia: It... it may well be that the ordinance is constitutional but the signs aren't.
William H. Hurd: It is... it is the policy--
Antonin Scalia: That's possible.
William H. Hurd: --It is the policy that is... that is challenged, not... not the signs.
David H. Souter: But are you taking the position that the policy and the signs are different in their content?
William H. Hurd: We're taking the position they must be read together, Your Honor.
David H. Souter: If you read them separately, are they different?
William H. Hurd: A... a person might be able to read the sign in isolation and believe that they had to get some permission to come in advance, but the people who come to the... to this housing complex and do so legitimately typically receive invitations from the residents. So they understand. The residents understand what the policy is.
Ruth Bader Ginsburg: Mr. Hurd, that's a curiosity about this case, the fact background of it that perhaps you can clarify. You keep saying legitimate visitor. This man's mother and his child and the mother of his child all live in this project, and one would think that he would certainly have a basis to visit his family.
William H. Hurd: Your Honor, two... two points on that. The... the first point is had he not been barred, certainly coming to visit his family would be a legitimate purpose. But once he is barred... and he was... he was barred under this--
Ruth Bader Ginsburg: And we don't know why.
William H. Hurd: --Well, the... the record suggests on page 60 that there may have been some domestic violence in the background. We do not know the specific facts of that. But we do know that that is referred to by Gloria Rogers on page 60 of the joint appendix. There's also a reference on that same page to giving out false information about addresses he allegedly lived at in the premises. He did plead guilty twice to trespassing and was convicted of damaging property. He does not challenge the particular reasons why he was barred, and if he wants to deliver diapers, he should have thought about that before his misconduct earned him this barment notice and he thereby forfeited his right to return. Besides, Your Honor, Justice Ginsburg, there's no evidence anyone saw any diapers or that he was there on such an errand other than what he said. And when he asked Gloria Rogers to let him back on the property, he never mentioned visiting the child or the child's mother.
Ruth Bader Ginsburg: It's not disputed that his... that they live in the project.
William H. Hurd: They do, and had he not engaged in misconduct, the situation never would have arisen. But it certainly cannot--
Antonin Scalia: Maybe they want him out too. We don't really know that either, do we?
William H. Hurd: --We... we do not, Your Honor. We do not. The... there was no testimony at trial from the mother that she had asked him to come or that he had brought her diapers or... or any of that. We have no idea whether he is welcome there or not. But the... the point I want to make is that surely it cannot be the law that a desire to visit one's mother or one's girlfriend trumps a barment notice regardless of how bad the individual's prior conduct may have been. He did not challenge that barment notice by saying, well, it wasn't bad enough. What we do know in the record is that it was pretty bad: two prior instances of trespass, damaging property, and so forth. In sum... I see my time is... is running out. I'd like to reserve some of it. In sum, we have families here living in desperate circumstances, marijuana for sale on Bethel Street, crack cocaine on Ambrose, heroin over on Deforrest Street. The overbreadth doctrine was designed to remedy situations where a challenged statute chills the rights of others not before the court. Here it's not this trespass policy that chills the right of free speech, but the dangerous conditions at Whitcomb Court that the policy was designed to alleviate. We ask that the judgment below be vacated. Thank you.
William H. Rehnquist: Thank you, Mr. Hurd. And you wish to reserve the rest of your time?
William H. Hurd: Yes, Your Honor. Thank you.
William H. Rehnquist: Mr. Dreeben, we'll hear from you.
Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court: What makes this case distinctive as a First Amendment case is the presence of a general law not directed at speech at all but directed at conduct that's under challenge and the absence of any expressive activity whatsoever by the person seeking to raise the overbreadth challenge. This Court's cases have entertained overbreadth challenges as a means of alleviating the chill of First Amendment rights of persons who are not before the Court, but the Court has never entertained overbreadth when the consequence of doing so would be to invalidate a general law that's primarily aimed at conduct and when the person who's raising the challenge did nothing to engage in speech or any expressive activity at all. The costs of an overbreadth challenge, this Court has recognized, are high because they prohibit the Government from enforcing a law against conduct that is not constitutionally protected. But those costs are magnified when the law under challenge is not merely a law that directs--
John Paul Stevens: Mr. Dreeben, assume... I know it's not quite clear, but assume for the moment that Virginia had clearly... Virginia Supreme Court clearly said we're going to allow standing as a matter of State law, but... even though it wouldn't be allowed as a matter of Federal law, and the case then came to us in that posture. Would we then have authority to decide the overbreadth issue?
Michael R. Dreeben: --I'm not sure that this Court would, Justice Stevens. It would then be in a posture more analogous to the J.H. Munson case that was before the Court in which the Court considered and Your Honor's separate opinion addressed the question of whether, when there was an independent State overbreadth analysis, could an aggrieved State official then bring the case to this Court. What is clear on the current record is that the Virginia Supreme Court cited and relied on--
John Paul Stevens: No. I understand that. But I'm just... I'm just wondering if it went back and they said, well, that's true, but it was a matter of Virginia law. We think we'll entertain a stand, and then they decide on Federal grounds that it violates the First Amendment. Then my question is, could we review that holding, and if... if we reviewed it in that?
Michael R. Dreeben: --Well, the question there would be whether the State was sufficiently aggrieved so as to have standing under the principles announced--
Anthony M. Kennedy: Some of our loyalty oath cases... I forget if it was Adler or Doremus. Doremus was First Amendment... allowed us to relax our standing rules in order to reach a substantive constitutional issue cited by the State court.
Michael R. Dreeben: --Well, the most relevant case is probably the Asarco decision in which the Court concluded that once the State court binds the State officials to a particular ruling, that there may be the requisite case or controversy to allow this Court to decide--
William H. Rehnquist: There's... there's also--
Antonin Scalia: --The same party can have standing to appeal.
Michael R. Dreeben: --That's right. And--
William H. Rehnquist: There's also a question, isn't there, Mr. Dreeben, of whether this overbreadth doctrine is essentially a part of the First Amendment or a part of the standing doctrine?
Michael R. Dreeben: --Well, it has two aspects, Mr. Chief Justice. One aspect of it does relate to whether there is a case or controversy, and there clearly has to be a developed enough case or controversy to allow Article III to be invoked for this Court to announce First Amendment principles at all. And part of the overbreadth doctrine responds to those concerns. But another aspect of the overbreadth doctrine is purely prudential, and this Court has adopted those limits as a matter of... of prudential principles to avoid the premature adjudication of hypothetical and abstract First Amendment questions.
Antonin Scalia: But it clearly relates to the doctrine of standing, doesn't it, which doctrine says that you normally do not have standing to raise the objections of other people? You only have standing to raise objections to your own treatment, not to the treatment of others, right?
Michael R. Dreeben: That's correct. I wouldn't dispute--
Antonin Scalia: And overbreadth changes that. It says in this one area, you can object to the treatment of other people.
Michael R. Dreeben: --Well, I think overbreadth is... is an application of a more general principle that this Court has adopted on... in various circumstances to allow a party who's before the Court and who is aggrieved to raise the rights of others. For example, in Batson challenges, the Court allows criminal defendants to raise the rights of the excluded jurors. This is an example of third party standing designed to implement First Amendment norms, but the Court has recognized that the costs of invalidating a law, when the person before the Court doesn't have constitutionally protected conduct, are high, and those costs are higher when what's being invalidated is not merely a law aimed at speech, but a law aimed at access, general conduct, as is this law.
John Paul Stevens: But the irony of what you're saying is that the Virginia... Virginia Supreme Court might undertake that cost, invalidate a Virginia statute on Federal grounds that we think are wrong and we couldn't do anything about it.
Michael R. Dreeben: That is probably true unless the Court applies the Asarco principle to allow an aggrieved State official to bring the case here because its own supreme court has interfered with the implementation of Federal law--
Stephen G. Breyer: See, but that's... that's the problem. I mean, this is exactly... that's why I'm mixed up about the standing part versus the merits. It seems to me if it's a traditional question of standing, there... there are a group of people who are trespassing who have nothing to do with speech. And then there's some other hypothetical people that might have to do with speech. And the question is can these people who have nothing to do with speech invalidate the statute because of the way it applies to some other people? Now, in the First Amendment area, we have normally let people do that, but in other areas not. All right. So suppose the answer is not. You can't. That's their problem. Let them raise it. Now, Virginia says, we want to let any taxpayer raise it. If it were purely standing, any taxpayer could raise it, but then what? I would have said that the first holding would have meant it is not unconstitutional under the Federal Constitution to convict this person. And... and now, under... under the guise of standing, they're going to come back and say, oh, no, it is unconstitutional because we let this person raise the rights of some others. That's where I'm confused.
Michael R. Dreeben: --I think the answer to this paradox is that the State court can adopt much broader principles of law with respect to standing than this Court would impose, and it can administer them even when it's adjudicating Federal light... rights. For example, a State could allow a purely advisory opinion to be issued by its State supreme court challenging this law by any citizen.
Stephen G. Breyer: Well, fine, let them challenge it.
David H. Souter: Okay. Does--
Stephen G. Breyer: --But if you're right, no matter how much they challenge it, the simple fact is, if you're right, it doesn't violate the Federal Constitution to convict this person.
Michael R. Dreeben: That's true.
Stephen G. Breyer: So what's raising it going to get him?
Michael R. Dreeben: Well, that... that is an adjudication of the... of the overbreadth challenge on the merits. It would be a determination that there is not sufficient real and substantial overbreadth to invalidate this law, and we do think that that is a correct analysis and would suffice to reject the Virginia Supreme Court's holding in this case.
David H. Souter: Okay, but you're... I think you're saying that... that under Asarco, they can challenge the substantiality point, but they wouldn't necessarily be able to challenge the standing point which gets this particular defendant in a position to raise the issue in the first place. Is that right?
Michael R. Dreeben: It's not exactly right, Justice Souter, because I think this is an area analogous to the Court's rules in criminal cases under Michigan v. Long where the Court has to decide, does this opinion rest on a question of Federal law or does it rest on a question of State law? And in Michigan v. Long, the Court adopted a presumption that if what a State court does is cite and rely on Federal precedents, we will presume that it did what it did because it thought it was compelled to by the force of this Court's decisions.
David H. Souter: We certainly... that certainly applies when you're talking about substantive law whether it... it would be an extension of that to apply it to standing.
Michael R. Dreeben: I think it would only be a modest extension because in this case the court did not separately analyze the questions of standing as such from whether respondent could bring an overbreadth challenge, and the question wasn't posed with a--
David H. Souter: Why... why isn't that a question of standing by definition?
Michael R. Dreeben: --It... what it--
David H. Souter: Overbreadth is an exception to standing, and... and so why is it anything but a standing issue? Substantiality of overbreadth is... is a substantive issue, but... you see my--
Michael R. Dreeben: --Let me... let me explain it this way, Justice Souter. If this Court said the First Amendment overbreadth doctrine requires that State courts entertain overbreadth claims like this one even when it's a general law and even when the party before the court has been convicted of conduct that doesn't involve speech, then State courts would be required to follow that rule and could not adopt a different standing principle that was narrower and that would exclude respondent. And our reading of the Virginia Supreme Court's opinion is that Virginia either thought or assumed that it was required by this Court's cases to entertain an overbreadth challenge. The proper response, if the Court agrees that it's not the State court's obligation to entertain this overbreadth challenge, would be to vacate the judgment, announce the correct First Amendment principles, and remand the case to the Virginia Supreme Court for proceedings not inconsistent with this opinion.
David H. Souter: --But that would... that would basically be applying something like Michigan v. Long rather than Asarco, right?
Michael R. Dreeben: In this case, it certainly would because the State court hasn't relied on a clearly insufficient case or controversy in order to adjudicate Federal rights. There is, in fact, a case or controversy here. The respondent has been convicted of a criminal offense, and he is challenging the law under which he was convicted. So this case does not fall outside of the case or controversy requirement even measured by Article III standards.
Ruth Bader Ginsburg: If we follow that course, we wouldn't get to the substantive overbreadth, right? We would just--
Michael R. Dreeben: That... that is correct, Justice Ginsburg. Thank you.
William H. Rehnquist: --Thank you, Mr. Dreeben. Mr. Benjamin, we'll hear from you.
Steven D. Benjamin: Mr. Chief Justice, and may it please the Court: In 1997, Richmond took a neighborhood and by ordinance, deed, and a police authorization, made it so that a person could not walk down the street or the sidewalk unless he could prove to the police that he was authorized to do so. The policy that the city implemented was of such breadth that it included the public, residents and nonresidents alike of this community, that it included innocent people doing lawful things, and it included protected conduct, such as the distribution of literature.
William H. Rehnquist: Are you suggesting that these streets were still as if they belonged to the City of Richmond after they were deeded to the housing authority?
Steven D. Benjamin: Yes, Your Honor.
William H. Rehnquist: Why is that?
Steven D. Benjamin: They were still public. They were still public streets, regardless of the transfer--
William H. Rehnquist: Why... you know, clearly the city intended that they no longer be public streets. Why did that intention fail?
Steven D. Benjamin: --Your Honor, for the same reason when Congress ruled... or... or passed a law saying that the sidewalks around this building were no longer to be used, for the same reason. The intent didn't matter. The character and the use and the form didn't change at all, and those were the criteria that mattered.
Antonin Scalia: That wasn't a law making those private sidewalks. What... what about the streets to and from the entry to the Governor's mansion in Richmond? Are they public streets too?
Steven D. Benjamin: Yes, they are, Your Honor.
Antonin Scalia: They are.
Steven D. Benjamin: Yes, sir.
Antonin Scalia: You can't exclude the public from... from marching right up to the Governor's front door?
Steven D. Benjamin: You can exclude the public from the gate.
Antonin Scalia: There's a gate. From the gate, but there's a street that goes right from the gate right up, you know, circular driveway, right up to the Governor's front door. That's a public street.
Steven D. Benjamin: That is not a public street, Your Honor.
Antonin Scalia: Of course, it's not a public street.
Speaker: [Laughter]
William H. Rehnquist: So it's--
Antonin Scalia: --So... so there can be streets owned by the State of Virginia or the City of Richmond that are not public streets.
Steven D. Benjamin: Yes, sir.
Antonin Scalia: And the only issue is whether this is one of them.
Steven D. Benjamin: Well, that street, Your Honor, I would call a driveway. That's what it is. [Laughter]
Antonin Scalia: Well, the residents of this housing project would call these streets their... their driveways, the... the access to their particular apartments.
Steven D. Benjamin: I disagree with you.
Stephen G. Breyer: Well, there are a lot of streets in Cambridge which are called private ways, and nobody knows what that means.
Speaker: [Laughter]
Steven D. Benjamin: And that, Your Honor--
Antonin Scalia: A lot of stuff in Cambridge that nobody understands.
Speaker: [Laughter]
Ruth Bader Ginsburg: Well, they have some original alleys in the District that are comparable I think.
Steven D. Benjamin: --That's true too, but you know, I have never, Your Honor, heard anyone with a grievance say let's take it to the alley. It's always, let's take it to the street because--
Anthony M. Kennedy: Well, I... I take... I take it there are any number of... of difficult and important issues here. One is the character of these streets. We don't know very much about it in the record. The other is whether, even if they are streets with some special status, whether Ms. Rogers is the one who has the right to say who can come and who can go. This is Ms. Rogers' neighborhood in a very interesting way.
Speaker: [Laughter]
Anthony M. Kennedy: But I... I take it that all of those issues are open for you to argue if we were to agree with the State that the Supreme Court of Virginia was simply wrong in its First Amendment analysis on overbreadth, and you would have all of those arguments to confront and to see if you can prevail on if we remand it to the Supreme Court of Virginia.
Steven D. Benjamin: --Your Honor, that's correct. However, those same issues, of course, were before the Virginia Supreme Court. The... the State, the petitioner, did not even challenge standing until the State sought cert at this Court. The question presented concerning the closest issue to standing was whether Mr. Hicks was untimely in his challenge to the barment-trespass policy. The State in all of the State courts argued that Mr. Hicks should have challenged his barment in some civil proceeding, and that's the question presented on page 97 of the joint appendix and that was what the Virginia Supreme Court dealt with, it having been the only issue presented to them on this at page 158.
Antonin Scalia: It doesn't have to argue it if they decide it. We... we will review a question that is either argued or decided by the State court. There's no doubt that the Virginia Supreme Court decided the standing question, decided the overbreadth question, and you're saying that we cannot review that decision because he was not the one that initiated the... the matter? That's just not what our law says.
Steven D. Benjamin: I don't know, Your Honor, if it is true to say that the Virginia court necessarily decided the standing order, it not... the standing issue, it not having been raised. But--
Antonin Scalia: They had a whole long discussion of overbreadth. I mean--
Steven D. Benjamin: --Yes, sir.
Antonin Scalia: --What do you think that was about?
Steven D. Benjamin: Yes, Your Honor, that was on the merits. When the Virginia Supreme Court discussed the merits, they discussed whether there was overbreadth and whether it was substantially overbroad.
Antonin Scalia: But they didn't decide that overbreadth was an issue. They just went ahead and decided if overbreadth had been an issue, this is how the issue would be resolved. Certainly they decided that overbreadth... that is, the standing doctrine of overbreadth... was applicable to this case.
Steven D. Benjamin: Your Honor, I disagree with you. I don't think they decided that and I don't think it was--
Antonin Scalia: Then why did they go into the discussion of whether this was overbroad? They must have thought it relevant.
Steven D. Benjamin: --Your Honor, because it... it was the... the immediate issue that confronted them. They were confronted with a policy that was unconstitutional in so many fundamental respects.
Ruth Bader Ginsburg: But they dealt with only one. Mr. Hurd said, yes, your question of public forum or not would be open, your due process vagueness argument would be open. What wouldn't be open, if we ruled against you on this First Amendment overbreadth thing, is... that's all. Everything else... the Virginia Supreme Court said this is what we're deciding and we're not getting to... they deliberately said we're not getting to public forum.
Steven D. Benjamin: Your Honor, if the Virginia Supreme Court did implicitly decide the standing issue, then it was a right that it had to accept this... this case which was, as the Government concedes, and the petitioner, a case and controversy. Mr. Hicks was convicted, and he did raise all of these constitutional issues in defense of his conviction. And if the Virginia Supreme Court implicitly reached the standing question, then as a matter of State law and State rights, it was entitled to do that.
William H. Rehnquist: Mr. Benjamin, certainly the dissenting opinion in the Supreme Court of Virginia talked about overbreadth. I mean, the... the one... I'm just reading a sentence here from appendix page: Thus, I conclude that the defendant may only challenge the trespass policy as it was applied to him. Now, that... that is overbreadth.
Steven D. Benjamin: Yes, sir. Yes, Your Honor.
Stephen G. Breyer: So what is the answer then to the overbreadth question? That is, the first question presented in the petition for certiorari, which we granted, asks, as I read it, the question of whether a person who does not engage in expressive conduct at all can ask the court and can succeed in having the court strike down a statute as applied to him for the reason that it might be unconstitutional as applied to other people engaged in expressive conduct. The example would be, favoring their side, that you have a gun statute. Any person who possesses a gun is... goes to jail, and the defendant says, well, I did possess a gun and I was trying to rob a bank, but maybe this statute would be applied to a person in a play, in which case it would be too broad. And they say it's like that absurd example. All right. Now, why isn't it close enough to the absurd example? They're also arguing that this is a statute that deals with drugs. It deals with ordinary trespass. Very few of these people want to pamphlet or engage in expressive conduct. A handful might, but if they do, let's consider it, when this statute is applied to them, which it never has been in their view. Now, what's your response?
Steven D. Benjamin: Your Honor, my response is that in the ordinary case, such as some of your hypotheticals suggest, it would become instantly apparent that the robber, although claiming that the statute or the policy is overbroad... it would become instantly apparent that he had no basis whatsoever to bring this motion. If he even got to a hearing, there would be an immediate failure of proof, but it wouldn't get to a hearing because there would be a motion to quash the motion for lack of--
Stephen G. Breyer: There happened to be... I didn't give you the whole statute. There were seven other constitutional errors in it, but I didn't mention them because they could be raised on remand.
Speaker: [Laughter]
Stephen G. Breyer: So it's... that... that I'm trying to make this--
Steven D. Benjamin: --In this policy I counted eight constitutional errors. In this case, Mr. Hicks' conduct was expressive. Mr. Hicks meets Virginia's own test because he was going to see his children, and there is no expressive action--
Anthony M. Kennedy: --You know, I... I think it's a mistake to put too much onto the First Amendment. The police officer stops me unlawfully and I say, I was on the way home to talk to my wife. I mean, this... this... it tends to trivialize the First Amendment if you put so much on it. You have some very important substantive issues here about the right of freedom of movement to use the streets and so forth, and it seems to me that for the... for you to rest the case, A, on the First Amendment, B, under what is a very questionable application of the overbreadth doctrine. It... it is not the right way to proceed in this case.
Steven D. Benjamin: --Your Honor, I understand your question, and Mr. Hicks at the inception was not outraged about free speech and First Amendment issues. He was outraged about the fact that he had been banned for apparently nothing more, as the en banc Virginia court found, going back to see his family repeatedly. He was upset and challenged the very barment proceeding and the... the entire policy.
Ruth Bader Ginsburg: May I just stop you there as a matter of accuracy? We don't know why he was debarred, but we do know that one of the charges was destruction of property. We don't know what property that was. So it's... I think you're painting a somewhat false picture to suggest that this was a loving father who was simply going to visit his children.
Steven D. Benjamin: The en banc court at page 125, footnote--
William H. Rehnquist: Is this the court of appeals?
Steven D. Benjamin: --Yes, Your Honor.
William H. Rehnquist: Not the supreme court.
Steven D. Benjamin: Not the supreme court, had found, Your Honor, that the... the charge of damaging property had nothing to do with his barment, and there was nothing in the record or in the evidence suggesting otherwise. The testimony at page 60 of the joint appendix does not permit the inference urged by the petitioner. The inference at most urged... that you could draw from page 60, the testimony there is that the police quite often saw Mr. Hicks in the development and he gave them an address, and then Ms. Rogers would confirm that he did not live there.
Antonin Scalia: Well, if you're going appeal to page 60, you're just out of the frying pan into the... into the fire. Yes, it... it doesn't mention destruction of property, but it does mention domestic violence.
Steven D. Benjamin: Your Honor, what Gloria Rogers is doing in that instance, although she has been asked the specific question, how did Kevin Hicks come to be barred, she begins, as she does, giving a general answer in how people get barred. And in the... she began with that. Then she went to Mr. Hicks' case, and then she went back to one of her own reasons of domestic violence.
Antonin Scalia: No. She's answering the question, please tell the court how he came... how has he come and have you banned him from the property. Yes. All right. Please tell the court how that came about. And she said, number one... she gave two reasons. When the police see a person in the development and they say they live someplace, they confirm with the office, and Kevin Hicks gave a false address. Secondly, because of the domestic violence in the development. I... I take that to be a response to the question that was asked. So, you know, to the extent we know anything about why he was banned, it was either because he destroyed property or because he participated in domestic violence.
Steven D. Benjamin: Yes, Your Honor. We had sought discovery of the reasons that he was banned, and counsel at page 1312 and 13 had said that counsel needed to demonstrate why Mr. Hicks was barred. But RRHA counsel, the housing authority counsel, objected that the reason why Mr. Hicks was banned was irrelevant because being a private property owner, the position was, they could ban anyone at any time for any reason.
David H. Souter: Okay, Mr. Benjamin, I'm going to ask you to assume that I at least do not accept the view that the record shows that your client was there for an expressive purpose that ought to be recognized by the... by the First Amendment. I don't ask you to stipulate that he was banned because he was a criminal. I will simply assume that he is in some middle ground, that he is not there for expressive purposes. Assume we don't know why he's there. What's your... your answer basically to the question put to you by Justice Breyer? Why is it necessary, in order to protect the First Amendment, to allow a person in that position to... to raise this kind of... of issue with respect, say, to leafleters or people who are there for expressive purposes? Why do we need to recognize this?
Steven D. Benjamin: Because, Your Honor, as you... this very exchange illustrates how unworkable that very test would be because reasonable people will disagree over whether any given conduct is in fact expressive. If the very fact that Mr. Hicks--
David H. Souter: Well, you're changing my hypo. I mean, I... I said let's assume that we don't have a predicate for saying this person's conduct is expressive. I will grant you that there are always going to be points on the margin in which we say, well, was he there for speech or wasn't he. Assume he wasn't. What... what is the... what is the best argument for recognizing his right to raise a First Amendment claim?
Steven D. Benjamin: --Because the whole reason for the exception is the importance of First Amendment rights and values. To impose this sort of a test would defeat the purpose and... and the value, the opportunity for society to deal with laws that sweep this broadly and infringe upon and violate people's--
David H. Souter: Why... why don't you have an adequate basis to deal with them under the vagueness doctrine, for example, that is open to you on remand, even if you lose here? Why do we have to turn this into a First Amendment issue?
Steven D. Benjamin: --Because I think the Virginia Supreme Court, when it saw the entirety of this policy, including not just the First Amendment issues, but the vagueness that permeates this policy... I think that the Virginia Supreme Court decided, from a conservative approach, that it would deal with the most to it... the most obvious deficiency and that is the complete unfettered discretion that... that Gloria Rogers, the housing manager, had, that every single police officer had, and deal with it then while the policy was before it, instead of going on and settling other questions, instead of requiring that challenges--
Ruth Bader Ginsburg: But what you just said goes right to vagueness, that you have an administrator who says, I'm queen. I'll let you in or I won't let you in. I don't see why you need the First Amendment hook to challenge that point.
Steven D. Benjamin: --Mr. Hicks didn't need the First Amendment. His issue from the very beginning began with the... the vagueness that permeates this, but it... he--
Anthony M. Kennedy: But... but maybe it's not your fault, but that's what the Supreme Court of Virginia said, and in the course of doing so, it arguably... and there's a very serious concern that it misapplied Thornhill.
John Paul Stevens: Mr. Benjamin, I don't want to put words in your mouth... excuse me. I'm sorry. I didn't... I don't want to put words in your mouth, but is this what you're trying to say, that if the statute is so overbroad it would be unconstitutional if the person has standing to challenge it? It doesn't matter whether he is... his disability is... is because it's not a First Amendment issue at all or whether he's engaged in First Amendment conduct which is perfectly prohibitable as to him. In either event, it doesn't matter why he can't challenge it as long as his... as the statute itself is overbroad. Is that what your position is?
Steven D. Benjamin: --Yes, Your Honor, that is.
Stephen G. Breyer: All right. Then--
Speaker: [Laughter]
Stephen G. Breyer: That's... is there a... is there a risk here? And I'm not asking it from one point of view or another. I don't know. But if we accepted that, there are trespass laws all over the country. And... and would... I don't know what they all say, but people who are convicted of ordinary trespass... and a lot of them apply to public property, et cetera... could then come in and say, look, these trespass laws, even though they've never been applied to stop expression... except in my case, but I'm assuming it's not expression in my case. Assume it's not. We have to set them all aside because they might be applied to expression in... in a way that's unconstitutional. If I accepted the proposition that you've just accepted, have I got myself in that box?
Steven D. Benjamin: Your Honor, I'm afraid I lost you somewhat during--
Stephen G. Breyer: Well, in other words, if I take the proposition you've just accepted as your argument, am I then allowing people who trespass... nothing to do with expression... to start attacking all the trespass laws on the ground that if applied in the expression area, they would be unconstitutional? And they haven't been applied in that area.
Steven D. Benjamin: --Yes, Your Honor.
Stephen G. Breyer: In other words... I would be--
Steven D. Benjamin: Yes, Your Honor.
Stephen G. Breyer: --I would be accepting that.
Steven D. Benjamin: Yes. And that... that... but it's not much of a risk.
Stephen G. Breyer: Because?
Steven D. Benjamin: Because those challenges would fail almost immediately because it... I know of no other case where the trespass law has applied so pervasively to the entire streets and sidewalks of a community.
Stephen G. Breyer: But trespass on public property... there could be all kinds of situations, Federal buildings and dozens of them, where in fact it's really applied against people who are breaking in who have no business there, and they just don't apply it or it never has come up whether they would apply it were somebody interested in a demonstration.
Steven D. Benjamin: Yes, Your Honor, but the system can easily deal with frivolous motions because of the requirements already built into the requirement. Overbreadth must not only exist and be articulable, it must be substantial. And the system could deal with that, with sanctions if necessary. In this case it wasn't enough for a citizen to have, in fact, a legitimate purpose to use the sidewalk. He had to be able to demonstrate that he had a legitimate purpose. The legitimate purpose was by reference solely to the subjective standards of any particular police officer or Gloria Rogers, the housing manager. There was no housing authority handbook of what constitutes legitimate business. There was no clear meaning as to what legitimate meant. Left unsaid would be whether someone could go onto these streets and sidewalks if their business was to argue and have it out with someone or to go meet with abortion activists. All we know from this policy is that before you can use these sidewalks, you must be engaged in a legitimate... whatever that means... business or social reason, which by its own terms--
Antonin Scalia: Those are all vagueness... those are all vagueness points. They... they really don't go to the... right? You're making the vagueness argument now.
Steven D. Benjamin: --I am--
Antonin Scalia: You... you would have us rule on a vagueness ground as well, wouldn't you?
Steven D. Benjamin: --I would, but--
Antonin Scalia: I'd sort of like to separate the arguments that are going to vagueness and those that are going to overbreadth. The ones you're making now don't go to overbreadth, it seems to me.
Steven D. Benjamin: --Your Honor, you can't separate vagueness and overbreadth, and this argument goes directly to the heart of First Amendment.
William H. Rehnquist: Well, our cases have certainly separated vagueness from overbreadth.
Steven D. Benjamin: I think that this Court has used the terms vagueness and overbreadth interchangeably and--
Anthony M. Kennedy: Well, let's... let's assume that we're up to the challenge.
Speaker: [Laughter]
Anthony M. Kennedy: It... it seems to me that there are some very important vagueness arguments in... in the... in the classical sense of that term that your client can and should make, and they're unrelated to the speech point. They're completely unrelated to it. They can play back in the speech context just as well, but... but the Supreme Court of Virginia thought about this just in the speech context, and that's our concern.
Steven D. Benjamin: --I submit, Your Honor, that the Virginia Supreme Court was taken and impressed by the First Amendment implications that are produced by the vagueness. If you must have a legitimate business or social purpose... and by those terms what's excluded as a legitimate purpose are lawful purposes like wandering or jogging because that's not a... a business or social purpose, but also protected purposes such as distributing fliers, literature, or holding religious meetings. That does not... that kind of conduct at least arguably does not fall within the rubric of business or social--
David H. Souter: No, but isn't it true... but isn't the problem with your argument this: It is one thing to say that a statute that ostensibly addresses speech is likely to have a serious overbreadth problem if it is very vague in the way it does it, but it is a very different thing to say that a statute that does not ostensibly address speech, that addresses conduct, walking across a line, becomes an overbreadth... presents an overbreadth problem simply because somebody who crosses that line might want to talk. And you're arguing on the basis of cases in the first category, speech with vague limitations, to tell us that we ought to... that we ought to consider everything in the second category a speech case. Isn't that the... the difficulty of your argument?
Steven D. Benjamin: --It is not, Your Honor, because this policy targeted streets in the first place, streets and sidewalks, which are... a principal purpose of which is for expressive activity. The policy itself was called the street privatization program.
Ruth Bader Ginsburg: Well, that--
David H. Souter: --But the--
Ruth Bader Ginsburg: --Mr. Benjamin, it may not be immediately before us, but it seems to me it is the heart of your case. You are essentially saying that a public authority cannot create, for people who live in projects, a gated community. The people who live outside projects can have streets, everything just like this, but government can't create it for poor people. Is that--
Steven D. Benjamin: Your Honor, they... they can't... the Government can't do it by simply saying that the streets are private and simply putting up signs because--
David H. Souter: --Okay. If you're right on that, we don't have to get to the speech issue. If you're wrong on that, you have the problem that I just presented to you, don't you?
Steven D. Benjamin: --I don't understand.
David H. Souter: If... look, if... if you're right that the Government cannot, in their words, privatize the streets, then that's the end of the case. Your guy can't be prosecuted for trespass in this instance, and that's the end of the issue here. If it turns out, on the other hand, that the Government can indeed do what it purported to do here, then it seems to me your argument suffers from the problem that I raised. You're saying that even in a case in which the statute doesn't address speech but addresses conduct, crossing a property line, there is a speech implication and every one of those trespass cases becomes a First Amendment overbreadth case. Isn't... isn't that correct?
Steven D. Benjamin: I agree that the challenge can be made if counsel sees fit to do so, but of course, he's bound by the State's ethical requirements. And the... the issue won't be there in most cases. There is no policy that is going to be as vague and overbroad, so pervasive in its effect on First Amendment freedoms as well as--
David H. Souter: You're saying when it gets very, very, very, very, very vague that's when it becomes a... a First Amendment problem even though it... the statute doesn't address speech. Is that basically it?
Steven D. Benjamin: --Your Honor, yes.
David H. Souter: How could we administer that?
Steven D. Benjamin: It's not... what you administer is what has always been administered, the requirement of a finding of substantial overbreadth.
David H. Souter: Do we... do we have any... any overbreadth cases that... that would support that? I mean, our overbreadth cases start with... with a speech claim and says, well, maybe you can stop my speech, but you can't stop his. Do... do you have any authority for--
Steven D. Benjamin: I don't think that in Chicago v. Morales that there was any claim that the petitioners in that case were involved in expressive activity.
David H. Souter: --I thought they wanted to have a parade or a... a--
Steven D. Benjamin: That was--
David H. Souter: --an assembly of some sort.
Steven D. Benjamin: --I think, Your Honor, that was in Forsyth County.
David H. Souter: Oh.
Steven D. Benjamin: We have cases such as Watchtower, for example, where admittedly in Watchtower, Jehovah's Witnesses were engaging in expressive activity, but there was nothing about the facts of that case or the ordinance that suggested that anyone in nonexpressive activity would not have been able to raise the substantial overbreadth challenge. If it had been Girls Scouts, for example.
Antonin Scalia: No. I think that was a First Amendment. What about Morales? What... what did Morales involve?
Steven D. Benjamin: That involved the Chicago anti-loitering statute.
Antonin Scalia: Street corner assembly.
Steven D. Benjamin: Right. In a police... a two-part test, the police--
Antonin Scalia: Their... their right to gather and assemble. I... that's sort of First Amendment stuff, isn't it?
Steven D. Benjamin: --I don't know that this Court reached it on that point. It... the Court did reach overbreadth, but didn't decide on overbreadth because the statute... see, the ordinance explicitly by its terms did not reach First Amendment freedoms or protected activity because you had to be doing something with no apparent purpose.
Antonin Scalia: No, but the thing that the person wanted to do was to... was to gather with his buddies on the street corner.
Steven D. Benjamin: Under that ordinance, it wasn't illegal. That didn't violate the ordinance because that was an apparent--
Ruth Bader Ginsburg: Yes, it did, and one of them was a gang member.
Steven D. Benjamin: --It did not because if he wanted to do it for an apparent purpose of expressive activity, then it didn't violate, and so that was not a problem. In this case we have the extraordinary situation that a person must have government permission, police permission to walk a street, to use a sidewalk, and his right to do this depends entirely upon the completely unfettered discretion of the police and a government official. If someone wants to go onto that sidewalk and pass out literature, they must get permission. They must get Gloria Rogers' permission, and she can give that permission or deny that permission in accordance with whatever criteria she uses at any given moment. The First Amendment problems with this case are substantial and pervasive. The Virginia Supreme Court saw that and dealt with it while it was there, seeing nothing redeemable about this policy whatsoever.
William H. Rehnquist: Thank you, Mr. Benjamin. Mr. Hurd, your time is expiring even as we speak.
Speaker: [Laughter]
William H. Rehnquist: So the case is submitted.
William H. Hurd: Thank you, Your Honor.