Rights close in housing project case

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   April 30, 2003 at 1:10 PM

WASHINGTON, April 30 (UPI) -- The Supreme Court heard argument Wednesday on whether government can turn the streets around a public housing project into a "First Amendment-free zone."

The case involves a public housing project in Richmond, Va.

Virginia State Solicitor William Hurd told the justices the streets around the project had been turned into "an open-air drug market" before they were closed to most non-residents in 1997.

The case, which was heard on the last day of argument this term, is a classic confrontation between competing but very basic rights under the Constitution. On the one hand, the First Amendment says government cannot interfere with what's called free association -- "the right of the people peaceably to assemble" -- as well as free speech or freedom of religion.

On the other hand, those same people have a right to live their lives without being subjected to the terror of drug traffic and gun violence. The kind of assembling that was taking place outside a Richmond public housing complex called Whitcomb Court was not the kind that communities want to promote. Violence and drug traffic were the order of the day before local officials took action.

The city passed an ordinance in June 1997 saying that the streets inside the project were "no longer needed for the public convenience" and deeded them to the Richmond Redevelopment and Housing Authority.

The housing authority then erected signs every 100 feet along the streets of Whitcomb Court. The signs clearly warned against trespassing, and said that "unauthorized persons will be subject to arrest and prosecution."

Following a minor criminal conviction in April 1998 for vandalism, Kevin Lamont Hicks was barred from the property by a notice delivered just outside the courtroom.

The court record does not specifically say why Hicks was barred -- Hurd told the justices that there is some suggestion in the record that he was involved in violence.

Hicks asked the public housing manager for permission to visit the complex, where his mother, his child and the mother of his child live, but permission was repeatedly denied.

After a police officer saw him at the project in January 1999, he was convicted of trespassing at the project, but his $1,000 fine and 12-month sentence were suspended.

Hicks appealed, and an intermediate state court eventually ruled 6-5 in his favor. The intermediate court said the streets in Whitcomb Court remained a "public forum," and attempts by the housing authority to regulate speech there violated the First Amendment.

The state then appealed to the Virginia Supreme Court, which also ruled for Hicks, but on different grounds. The Virginia Supreme Court said the ban was overly broad and infringed on Hicks's First Amendment rights.

The state then asked the Supreme Court of the United States for review.

Hurd told the justices that the First Amendment would not even come up if the case involved private property, rather than a public housing project.

"Surely, those who live in public housing should not be forced by the law to live in more dangerous circumstances than those in private housing," he said.

Hicks was not engaged in any "expressive conduct" protected by the First Amendment when he challenged the restrictions, Hurd added. "The risk that any legitimate speaker would be chilled would be quite small."

The Justice Department supported Virginia in argument.

Deputy U.S. Solicitor General Michael Dreeben told the justices that the restrictions did not address speech but conduct, and the "overbreadth" analysis used by the Virginia court did not apply in such cases.

Richmond attorney Steven Benjamin spoke for Hicks.

His client was arrested for using a public sidewalk, Benjamin said.

"It was not enough to have a legitimate purpose to use a sidewalk," the attorney argued. "He (Hicks) had to demonstrate he had a legitimate need to use a sidewalk."

Benjamin called that "an extraordinary situation. Someone must get police permission to walk on a sidewalk."

Several of the court members, particularly Justices David Souter and Stephen Breyer, indicated from the bench that they thought the case was flawed. Both justices wondered aloud how Hicks, who was not engaged in First Amendment conduct, could challenge the law under the "overbreadth" doctrine on behalf of all those who may have legitimately engaged in such conduct.

Stevens tried to come to Benjamin's rescue. The justice asked from the bench whether Benjamin wasn't taking the position that the statute was so overbroad that his client did not need to attack it from a particular First Amendment position?

Benjamin said that he was.

Besides the Bush administration, most national municipal organizations, 15 states and Puerto Rico are supporting Virginia in the case.

Hicks is supported by the American Civil Liberties Union and other constitutional watchdog organizations.

The Supreme Court of the United States should hand down a decision in the case before recessing for the summer in late June or early July.

--

(02-371, Virginia vs. Hicks.)

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