The First Amendment doctrine of overbreadth is an exception to the normal rule regarding the standards for facial challenges. The showing that a law punishes a substantial amount of protected free speech, judged in relation to the statute's plainly legitimate sweep, suffices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.
The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owned and operated Whitcomb Court, a low-income housing development. In 1997, the Richmond City Council conveyed 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 demonstrating require advance permission vested too much discretion in Whitcomb Court's manager.
Was Richmond Redevelopment and Housing Authority’s policy unconstitutionally overbroad in violation of the First Amendment?
The Court held that RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. According to the Court, even if it were assumed for the purposes of argument that, as the Virginia Supreme Court had concluded, the trespass policy included an invalid and nonseverable "unwritten" rule that demonstrating and leafleting at the development required permission from the development's manager – respondent Hicks had failed to show, on the basis of the record, that the trespass policy, taken as a whole, was substantially overbroad when judged in relation to the policy's plainly legitimate sweep, as among other factors, Hicks had failed to show that a barment notice would be given to anyone engaged in constitutionally protected speech. Furthermore, both the legitimate-purpose and the post-notice arrest provisions of the policy applied to all persons who entered the development's streets, not just to those who sought to engage in expression; thus, the policy applied to a group which would seemingly far outnumber First Amendment speakers.