text:
No. 02-371
In the Supreme Court of the United States
Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistants to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
1. Whether a defendant whose non-expressive conduct violates a regulation limiting access to government property may bring a facial overbreadth challenge to that regulation on the ground that its application to expressive conduct would violate the First Amendment.
2. Whether the degree of discretion that officials may exercise to permit individuals to enter government property in order to engage in expressive conduct varies depending on whether that property is a public forum.
In the Supreme Court of the United States
No. 02-371
The United States has ownership and other interests in a wide variety of types of property and therefore has an interest in the substantive and procedural standards that govern challenges to the regulation of public activities, including expressive activities, on such property. See, e.g., United States v. Kokinda, 497 U.S. 720 (1990) (post office sidewalk); United States v. Grace, 461 U.S. 171 (1983) (Supreme Court grounds); United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981) (postal letterbox); Greer v. Spock, 424 U.S. 828 (1976) (military base). In addition, the United States assists public housing agencies in financing the development, acquisition, and operation of low-income housing projects. 42 U.S.C. 1437 et seq. Accordingly, the United States has a substantial interest in the ability of local housing agencies to take steps to ensure tenants' safe use and enjoyment of the housing premises, as well as the ability of the tenants to have reasonable accommodation made for their guests. See 24 C.F.R. 966.4(d)(l); see also Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002).
1. This case involves Whitcomb Court, a troubled public housing development in Richmond, Virginia. The development had been described as an "open-air drug market," and "[t]he majority of persons who had been arrested for drug crimes at the Whitcomb Court housing development were individuals who did not reside there." Pet. App. 3. In an effort to address those problems, the Richmond Redevelopment and Housing Authority, a political subdivision of the Commonwealth of Virginia and the owner and operator of Whitcomb Court, sought to limit access to the property. In 1997, the City of Richmond, which owned the streets located within Whitcomb Court, passed an ordinance declaring that the streets in the development were "closed to public use and travel" and conveyed title to the streets to the Housing Authority. Ibid. The deed conveying title required the Housing Authority to "make provisions to give the appearance that the closed streets, particularly at the entrances, are no longer public streets[.]" Ibid.
The Housing Authority accordingly placed signs on the housing development's buildings and every 100 feet along the streets, stating, inter alia, "NO TRESPASSING," "YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA," and "UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION." Pet. App. 4. At the same time, the Housing Authority authorized the Richmond Police to serve notice on any unauthorized person on Housing Authority property forbidding that person to return to such property if "such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises." Id. at 98. In addition, the Housing Authority gave the police the authority to arrest any person who, "having been duly notified, either stays upon or returns to" Housing Authority property. Id. at 98-99.1
According to the Supreme Court of Virginia, under the Housing Authority's policy, "individuals who sought access to the Housing Authority's property, including the streets, needed to obtain * * * permission for such access" from Gloria Rogers, the manager of Whitcomb Court. Pet. App. 5. She "was required to determine whether a person can demonstrate a legitimate business or social purpose to use the Housing Authority's property * * * including the streets." Ibid. In particular, a person who wanted "to disseminate materials or participate in an activity on the property" had to obtain permission from Rogers. Ibid. If a person requested access to the property from Rogers, she sometimes "referred such request to a 'community council' which met with 'the [Whitcomb Court] Board and the residents." Ibid. In addition, "if an individual submitted a request to distribute flyers and the request was not 'routine,' she referred that request to the Housing Authority's director of housing operations for resolution." Ibid. Aside from the general "legitimate business or social purpose" guideline, there were no written policies or procedures governing "decisions regarding who may distribute materials or participate in activities on the Housing Authority's property." Ibid.
2. On January 20, 1999, respondent was arrested for trespassing on the sidewalk on Bethel Street, a street that is entirely encompassed within Whitcomb Court and passes through the middle of the property. Pet. App. 6, 32, 97. Respondent's mother, his baby, and the baby's mother live at Whitcomb Court. Id. at 32. When he was arrested, respondent stated that he was delivering diapers to his baby. Ibid. Respondent had earlier been convicted of trespassing on Whitcomb Court property on February 10, 1998, and June 26, 1998, and he had been convicted of damaging property on Whitcomb Court on April 27, 1998. Id. at 6, 32. On April 14, 1998, before his second conviction for trespassing and his conviction for damaging property, Rogers delivered him a letter informing him that "effective immediately you are not welcome" on Housing Authority property, that "you are not to trespass on [Housing Authority] property," and that "[i]f you are seen or caught on the premises, you will be subject to arrest by the police." Id. at 107.
Respondent was charged with violating Virginia's notice- trespassing misdemeanor statute. See note 1, supra. He was tried and convicted on that charge in the City of Richmond General District Court. Pet. App. 2. He appealed his conviction to the Circuit Court of the City of Richmond, where he was again convicted after a bench trial. Id. at 82-85.
3. After a panel of the intermediate state appellate court ruled that his conviction should be affirmed, Pet. App. 59-81, the en banc court reversed by a 6-5 vote, id. at 28-58.
The majority stated that "[t]he critical issue is whether the 'privatized' streets and sidewalks are public and as such are a 'traditional public forum,' or whether they are 'private' and, thereby, a 'nonpublic forum.'" Pet. App. 34. The court held that the city "is not permitted to transform the public streets and sidewalks in Whitcomb Court into private, non-public property simply by passing an ordinance declaring them closed, conveying them to another governmental entity, [the Housing Authority], and placing signs along the streets." Id. at 38. Having concluded that the streets in Whitcomb Court remained a public forum, the court held that the restrictions on access were not narrowly tailored to serve the interest in crime control. Id. at 41.
The five dissenting judges would have barred respondent from raising this "untimely and improper collateral attack on his barment status," because he had not taken advantage of judicial opportunities at the time of his prior trespassing convictions and administrative opportunities since that time to challenge his barment. Pet. App. 45. They also would have held that respondent's First Amendment overbreadth challenge cannot succeed, because the constitutional reach of the trespass policy "dwarfs its arguably impermissible applications." Id. at 49. The dissent also argued that the street on which respondent was arrested was no longer a traditional public forum, because it had been deeded to the Housing Authority, the Housing Authority had posted no-trespassing signs, and the property had been treated as private for at least a year before respondent's arrest. Id. at 52. In the dissent's view, "there is absolutely no evidence that the streets and/or sidewalks of the Whitcomb Court property remained open to a public flow of traffic." Ibid. The dissent concluded that "any potential interference with an individual's right of expression * * * is reasonable, limited and justified to achieve the legitimate purpose of protecting [Whitcomb Court] residents from crime." Id. at 54.
4. a. The Supreme Court of Virginia affirmed. The court framed "[t]he narrow issue * * * in this appeal" as "whether a redevelopment and housing authority's trespass policy is overly broad and thereby violates the First and Fourteenth Amendments." Pet. App. 2. The court stated 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." Id. at 9.
In this case, the Court held that "[e]ven though the Housing Authority's trespass policy * * * is designed to punish activities that are not protected by the First Amendment, the policy also prohibits speech and conduct that are clearly protected by the First Amendment." Pet. App. 13. In particular, the court observed that Rogers, the manager of the property, "has unfettered discretion to determine who can distribute literature" at the project and that "a non-resident of Whitcomb Court can only distribute such literature if that non-resident obtains authorization from Rogers." Id. at 14-15. The court stated that "Rogers has the unfettered discretion to determine not only who has a right to speak on the Housing Authority's property, but she may prohibit speech that she finds personally distasteful or offensive even though such speech may be protected by the First Amendment." Id. at 16. On that basis, the court concluded "that the Housing Authority's trespass policy is overly broad and that [respondent] may assert this issue in this criminal prosecution." Id. at 17.
The court recognized that "the Court of Appeals decided this case on the basis that the Housing Authority's private streets constitute a public forum and that the Housing Authority's efforts to regulate speech in that forum contravene the First Amendment." Pet. App. 16. But, the court stated, in light of what it characterized as its "limited holding," it "need not resolve this issue" but would instead "reserve consideration of this issue for another day." Ibid.
b. Justice Kinser, joined by one other member of the court, dissented. In his view, the court erred in holding that respondent could bring this facial challenge. He pointed out that this Court's cases cited by the Virginia Supreme Court in support of its conclusion that respondent's facial challenge is permissible each "addressed a statute requiring a license or permit to engage in First Amendment activity." Pet. App. 18. But "[b]ecause the Authority's trespass policy does not directly regulate activity protected by the First Amendment, but instead limits access to government property, * * * these cases are not persuasive authority to justify the defendant's facial challenge to the trespass policy." Id. at 19. Because the Housing Authority's trespass policy at issue in this case "is directed at conduct, namely trespassing, and not pure speech," id. at 21, the dissent explained that it must be shown to be "substantially overbroad" before it can be attacked through a facial challenge, id. at 22. The dissent concluded that, because the policy's legitimate sweep in regulating trespassing on government property is much greater than any impermissible applications, respondent could not make such a showing. Ibid.
The dissent also concluded that "if a facial challenge is to be allowed in this case, it should be analyzed under the framework established by the Supreme Court for deciding when an individual's First Amendment rights have been violated by a denial of access to government property." Pet. App. 23. In particular, "the nature of the forum must * * * be identified, 'because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.'" Ibid. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).
I. Respondent was not engaged in expressive activity when he violated the Housing Authority's trespass policy. Accordingly, respondent's First Amendment challenge to that policy may proceed only as an overbreadth challenge- i.e., only on the ground that the policy is unenforceable against him because it would be unconstitutional as applied to others who are engaged in expressive activity. Allowing such third-party challenges imposes serious costs. It restricts society's ability to enforce its laws against persons whose conduct is constitutionally unprotected. It also requires courts to decide constitutional issues in an entirely abstract context. And it may lead to the premature and unnecessary resolution of serious constitutional questions. Although the overbreadth doctrine permits First Amendment challenges to be brought to substantially overbroad statutes in limited circumstances to avoid a chill to the expressive rights of parties not before the court, the doctrine's application is limited. It should not be extended to the circumstances of this case, for two related reasons.
First, all of this Court's overbreadth cases have involved parties who themselves had engaged-or sought to engage -in expressive activity. The doctrine ought not be extended farther, to parties like respondent, who have not engaged in expressive activity subject to the regulation under attack. The costs of a challenge like respondent's are more substantial than in an ordinary overbreadth case; a challenge like respondent's, if successful, will disable society from enforcing its laws even against those engaged in no expressive activity at all. It also may easily result in courts prematurely and perhaps unnecessarily deciding constitutional questions. In this case, for example, there is no reason to believe that the challenged trespass policy has any impact at all on expressive activity or that anyone seeking to engage in such activity on Whitcomb Court property has ever been denied permission to do so. Accordingly, an overbreadth challenge to a regulation by a party who has not himself engaged in expressive activity subject to the regulation should not be entertained.
Second, this Court has permitted overbreadth challenges to statutes that regulate speech or conduct closely related to speech, but it has noted that the doctrine's rationales would not permit overbreadth challenges to laws of more general applicability that are in no way directed toward speech or to conduct closely related to speech. Such laws pose a lesser danger to First Amendment rights, and they thus do not call for the "strong medicine" of overbreadth challenges. Because the Housing Authority's trespass policy sweeps far beyond speech or speech-related conduct and was adopted for reasons having nothing to do with suppression of speech, it should not be analyzed for overbreadth. It would be particularly unwarranted to invalidate the trespass policy on overbreadth grounds to the extent that the policy regulates entirely nonexpressive conduct. For similar reasons, the policy would not in any event be substantially overbroad, even if an overbreadth challenge could otherwise be maintained in this case.
II. If the Court holds that respondent's overbreadth challenge may be entertained, the decision of the Virginia Supreme Court should nonetheless be reversed. That court held that the Housing Authority's trespass policy violates the First Amendment because it vests too much discretion in the manager of Whitcomb Court to determine whether those engaged in expressive activity will be permitted on the property. The court, however, erred in reaching that conclusion without determining whether the Whitcomb Court sidewalks, which once were ordinary city sidewalks, retain their character as a public forum.
If the property at issue remains a public forum, then the vesting of discretion in the manager presents serious First Amendment problems. But if the sidewalks of Whitcomb Court are not a public forum, then the government has substantially broader ability to regulate expression on it. Insofar as Whitcomb Court has become an area not generally open to the public, the government may vest discretion in a gatekeeper to permit entry only to those with legitimate purposes for being there, just as it may do the same at a government-owned military base or office building. Nor does the fact that the streets of Whitcomb Court was at one time a public forum demand the conclusion that it retains that status; property that once was a public forum may surely be converted to another use.
United States v. Grace, 461 U.S. 171 (1983), establishes that merely enacting a law declaring speech off-limits in what was a public forum is insufficient to convert a public forum to another use. But this Court has not addressed what more is required before a government-owned property that was a traditional public forum has been converted to another use, such that the rules restricting government regulation in a public forum are no longer applicable. The Court ought not address that question in the first instance, without the benefit of a decision on the issue by the court below and on the thin record in this case. If the Court holds that respondent may bring a First Amendment overbreadth challenge in this case, therefore, the Court should reverse the decision of the Virginia Supreme Court and remand for further proceedings, so that the question whether the street on which respondent was arrested was a public forum may be addressed in the first instance by the courts below and with whatever further factual development is necessary.
At the time he was arrested, respondent was walking on a sidewalk located on Housing Authority premises. He stated that he was delivering diapers to his baby, who lived at the development. Pet. App. 32. He did not claim-and he has never claimed-that he was on the premises for any expressive purpose that would trigger First Amendment protection. He did not claim that he was handing out leaflets, that he was organizing a demonstration, or that he was in any way trying to get a message across to the public.2 Accordingly, respondent's conduct was not protected by the First Amendment's guarantee of freedom of expression, and the Housing Authority's trespass policy as applied to him-i.e., its determination that it did not want to permit him to trespass on its property-did not intrude on any of his own First Amendment rights. Respondent's First Amendment challenge to the trespass policy may thus proceed, if at all, only as an overbreadth challenge-i.e., only on the ground that the claimed unconstitutionality of the policy as it might be applied to others, who are engaged in First Amendment protected activity, is sufficient to make the policy unenforceable against him.
Such an overbreadth challenge does not lie in this case, for two related reasons. First, this Court has never held that a First Amendment overbreadth challenge may be brought by a party not engaging in expressive activity subject to the challenged regulation, and it ought not extend the doctrine now to permit such challenges. Second, this Court has cautioned against permitting First Amendment facial challenges to laws of general applicability that extend to conduct with little connection to speech. The Housing Authority's trespass policy is such a law, and respondent's facial overbreadth challenge to it accordingly should not be entertained.
A. The Overbreadth Doctrine Is A Limited Exception To The General Rule Permitting Only As-Applied Constitutional Adjudication
1. The traditional rule is that "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see Barrows v. Jackson, 346 U.S. 249, 256 (1953) ("[E]ven though a party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly violated."). That rule is based on several rationales.
First, as-applied adjudication ensures that society's ability to enforce its laws is curtailed only where doing so would violate a constitutional command that the defendant's conduct must be protected. By contrast, overbreadth challenges eliminate society's ability to enforce laws even in cases in which the defendant's conduct is unprotected. See Broadrick, 413 U.S. at 615 (a holding that a law violates the First Amendment in an overbreadth case "prohibit[s] a State from enforcing the statute against conduct that is admittedly within its power to proscribe"). That curtailment of society's ability to protect itself from "harmful, constitutionally unprotected conduct," ibid., is significant, and a court should not be "so ready to frustrate the expressed will of Congress or that of the state legislatures." Barrows, 346 U.S. at 256-257.
Second, while an as-applied challenge presents a court with a concrete factual setting in which to adjudicate the question whether the challenged regulation is genuinely inconsistent with the First Amendment, an overbreadth challenge deprives the court of such a concrete factual setting. Where a court can "focus[] on the factual situation" before it, it has the opportunity to address "'flesh-and-blood' legal problems with data 'relevant and adequate to an informed judgment.'" Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39 (1999) (quoting New York v. Ferber, 458 U.S. 747, 768 (1982)). But where the court must "consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation," Barrows, 346 U.S. at 256, reliable judgment becomes much more difficult.
Third, while an as-applied challenge requires a court to pass on a constitutional question because doing so is necessary to vindicate the Constitution with respect to the particular party before the court, overbreadth challenges can lead the Court to "unnecessary pronouncement on constitutional issues." United States v. Raines, 362 U.S. 17, 22 (1960). The court must address the constitutional challenge, even if the assertedly unconstitutional application of the statute on which the challenge is based never in fact arises or arises in a context in which different or narrower issues are presented.
2. Notwithstanding the above costs, because "the First Amendment needs breathing space," Broadrick, 413 U.S. at 611, overbreadth challenges under the First Amendment have been "deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 520-521 (1972). In essence, the party before the court, whose conduct may be regulated consistently with the First Amendment, is permitted to represent the interests of third parties not before the court whose speech would be chilled by the prospect that the regulation would be applied to them.
Nonetheless, the Court has emphasized that "[a]pplication of the overbreadth doctrine * * * is, manifestly, strong medicine" that "has been employed by the Court sparingly and only as a last resort." Broadrick, 413 U.S. at 613. See Ferber, 458 U.S. at 769. In light of its heavy costs, the Court has restricted First Amendment overbreadth challenges in a number of respects. The Court has held that overbreadth challenges may succeed only on a showing that the law's overbreadth is substantial. "[T]he scope of the statute does not render it unconstitutional unless its overbreadth is not only 'real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Osborne v. Ohio, 495 U.S. 103, 112 (1990) (quoting Broadrick, 413 U.S. at 615). "Even where a statute at its margins infringes on protected expression, 'facial invalidation is inappropriate if the 'remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable * * * conduct.'" Ibid. (quoting Ferber, 458 U.S. at 770 n.25). The Court has also held that the First Amendment overbreadth doctrine does not apply to commercial speech, see Bates v. State Bar of Ariz., 433 U.S. 350, 380-381 (1977), which is not easily chilled, and in the military context, see Parker v. Levy, 417 U.S. 733, 760-761 (1974).
B. An Overbreadth Challenge May Not Be Brought By One Not Engaged In Expressive Activity Subject To The Challenged Regulation
All of this Court's overbreadth cases have involved parties who engaged in, or sought to engage in, expressive activity subject to the challenged regulation. E.g., Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002) (restriction on door-to-door canvassing challenged by religious proselytizers); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (restriction on virtual child pornography challenged by parties who create erotic and nudist works); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (permit for private use of public property challenged by group that wanted to hold demonstration); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (newsrack licensing scheme challenged by newspaper); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (ban of all "First Amendment activities" challenged by party seeking to distribute religious literature); Gooding v. Wilson, 405 U.S. 518 (1972) (law prohibiting "opprobrious words or abusive language, tending to cause a breach of the peace" challenged by person convicted for using such language) (citation omitted); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969) (parade permit ordinance challenged by demonstrators); Thornhill v. Alabama, 310 U.S. 88, 97 (1940) (statutes prohibiting loitering with purpose to influence and picketing challenged by union picketer); Lovell v. City of Griffin, 303 U.S. 444 (1938) (licensing scheme for distribution of literature challenged by person distributing religious pamphlets).3 The rule permitting overbreadth should not be extended to cases, such as this one, in which the party bringing the challenge has not engaged in expressive activity subject to the challenged regulation.
The costs of permitting such a challenge are high. If an individual who has not engaged in expressive activity subject to a regulation is permitted to bring an overbreadth challenge to that regulation, the damage to society's legitimate interest in enforcing its laws is even greater than in the ordinary overbreadth case, in which the challenger was engaged in expressive activity. For if the overbreadth doctrine is widened to permit challenges like the one in this case, enforcement of the challenged law is precluded not only against those engaged in expressive conduct, but also against the necessarily even wider category of individuals who have no claim to expression at all.4 In this case, for example, if respondent's challenge is permitted, the Housing Authority's trespass policy could be invalidated entirely, so that the drug dealers, their customers, and other criminals who were the original targets of that policy could not be prohibited from entering the grounds of Whitcomb Court. That result would follow, despite the fact that none of those individuals has any claim to being engaged in expressive conduct and no personal First Amendment interest to protect.
The risk of premature or unnecessary constitutional adjudication, which is a cost of any overbreadth challenge, is increased if the party bringing the challenge has not himself engaged in expressive activity. Although respondent can hypothesize about the existence of speakers whose exercise of their First Amendment rights would allegedly be chilled by the Housing Authority's trespass policy, the record in this case does not clearly disclose that any individual who wanted to enter Whitcomb Court to engage in expressive activity-protected by the First Amendment or not-has ever been, or would ever be, denied permission to do so.5 See City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) ("[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds."). Accordingly, cases like this one pose the risk that the Court must decide substantial constitutional questions under the First Amendment whose resolution is, in fact, wholly unnecessary. In light of the substantial costs of entertaining First Amendment overbreadth challenges to regulations by individuals not engaging in expressive activity subject to those regulations, this Court ought not extend the overbreadth doctrine to permit such challenges.
C. Facial Overbreadth Challenges May Not Be Brought To Laws Of General Applicability
There is a second, related reason why respondent's overbreadth challenge should not be entertained. Virtually all of this Court's overbreadth cases have involved challenges to laws that either regulate speech directly or regulate conduct closely associated with speech. See pp. 14-15, supra (citing cases). Such laws are generally not susceptible to challenges such as this one, in which the party bringing the challenge has not engaged in expressive activity at all, because the regulation itself applies to few parties in that situation. Yet where the issue has arisen, this Court has stated that laws of general applicability, which apply to conduct that has little or nothing to do with speech, are not subject to facial overbreadth challenges, even though such laws could have an incidental effect on speech in particular instances. That principle precludes respondent's challenge in this case.
1. In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 763-764 (1988), the Court entertained a facial challenge to an ordinance that gave the mayor of a city "unfettered discretion" to grant or deny applications for annual permits to place newsracks on city property and held that the ordinance was unconstitutional. 486 U.S. at 772. The Court held that facial challenges may be brought to laws that "have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of * * * censorship risks." Id. at 759. The Court held that, because the newsrack ordinance had to do with the distribution of newspapers, it satisfied that standard.
The Court in City of Lakewood, however, distinguished "laws of general application that are not aimed at conduct commonly associated with expression," such as "a law requiring building permits" or "a law giving the mayor unbridled discretion to decide which soda vendors may place their machines on public property." 486 U.S. at 760-761. The Court noted that facial challenges to such laws of general applicability would not be warranted, notwithstanding that they could be applied in violation of the First Amendment in particular cases, such as where an unpopular newspaper is refused a building permit or a soda vendor who has criticized the municipal government is denied a permit to place a vending machine on public property. Id. at 761. As the Court explained, "such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse." Ibid. See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 860 (1970) ("[T]he primary conduct which is affected by the law at issue must to a substantial extent be the kind of expressive and associational behavior which at least has a colorable claim to the protection of the [First] amendment" in order for the overbreadth doctrine to be applied.).
2. Based on the above principles, the Court has generally entertained overbreadth challenges only to laws that undoubtedly target expression. See pp. 14-15, supra (citing cases). The limits of that principle involve cases such as Thomas v. Chicago Park District, 534 U.S. 316 (2002), and Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). Thomas involved a facial overbreadth challenge to an ordinance that required a permit for any gathering of more than fifty persons in a public park. Forsyth County involved a challenge to an ordinance that was adopted "[a]s a direct result" of two street demonstrations and required a permit and fee for "parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes." 505 U.S. at 126 (citation omitted). Although the Court did not in either case address whether the challenged ordinances were sufficiently targeted at speech to satisfy City of Lakewood, the permit requirements in both cases applied not only to expressive activity, but to activity with little or no expressive component. At the same time, both ordinances appear to have applied solely to gatherings of groups of people in traditional public forums, and the ordinance in Forsyth County was specifically adopted as a result of such gatherings. Gatherings of people in a public forum are a characteristic of expressive activity and a traditional function of public parks and streets. Cf. Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak * * * and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed."). The targeting at gatherings in a public forum would suggest that the ordinances in both cases regulated conduct that "ha[d] a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of * * * censorship risks." City of Lakewood, 486 U.S. at 759.6
This case, however, involves a trespass policy that, as the Virginia Supreme Court noted, "is designed to punish activities that are not protected by the First Amendment." Pet. App. 13. The policy was adopted "[i]n an effort to eradicate illegal drug activity in Whitcomb Court, which was described as an 'open-air drug market.'" Id. at 3. See id. at 29 n.1 (Housing Authority brochure listing "goals of street privatization" as, inter alia, "[t]o make communities safer by removing persons who commit unlawful acts which destroy the peaceful enjoyment of other residents," and "[t]o ensure that children have places to play free of drug paraphernalia and the danger of gunshots and other criminal activity"). The trespass policy punishes conduct-the entry on to Housing Authority property by people not authorized to be there-not speech. Unlike in Thomas or Forsyth County, the vast bulk of the conduct the Housing Authority trespass policy targets has nothing to do with expressive activity.
Like any trespass law, the trespass policy might on occasion apply to demonstrators, leafletters, or others attempting to engage in protected activity, and it could be unconstitutionally applied in those instances. See, e.g., Marsh v. Alabama, 326 U.S. 501, 509 (1946) ("Insofar as the State [through its trespass law] has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand."). But the Housing Authority's trespass policy by its nature is targeted at anyone who seeks to enter Whitcomb Court, and in particular at drug dealers, their customers, and other criminals who had frequented the property. Accordingly, the trespass policy, like the laws of general applicability the Court discussed in City of Lakewood or the trespass law in Marsh v. Alabama, applies very broadly to conduct that has little to do with speech. A First Amendment challenge to such laws should not be entertained in the absence of a claim of "actual misuse" in a given case. City of Lakewood, 486 U.S. at 761.
At the very least, overbreadth analysis should not encompass the potential invalidation of a general statute in its applications to conduct that has no arguable connection to speech or expression. Even if the statute has some speech-related applications and all of those applications could be challenged (and invalidated) through overbreadth doctrine, non-speech-related applications of the law should be left untouched. In this case, that would mean that, at a minimum, non-speech-related applications of the trespass policy at Whitcomb Court-that is, applications to conduct such as that engaged in by respondent-could not be challenged and facially invalidated under overbreadth principles.
D. The Housing Authority's Trespass Policy Is Not In Any Event Substantially Overbroad
If respondent, as a party who did not engage in expressive activity subject to the Housing Authority's trespass policy, is permitted to bring an overbreadth challenge to that policy, the challenge should in any event be rejected because the policy is not substantially overbroad. The overbreadth of the policy-the extent to which it actually affects constitutionally protected speech-is at most uncertain and marginal. By contrast, its plainly legitimate sweep extends to all instances in which the policy bars those who have no legitimate business or social purpose and who are not engaging in First Amendment protected activity from entering Whitcomb Court. Because the overbroad reach of the Housing Authority's trespass policy thus likely extends only to "marginal applications," Ferber, 458 U.S. at 770 n. 25 (citation omitted), and it has no "embracing sweep * * * over protected expression," id. at 771, it is not substantially overbroad.7
The Court of Appeals of Virginia, the intermediate state appellate court, held that the streets and sidewalks of Whitcomb Court were a public forum, Pet. App. 33-40, but see id. at 49-53 (dissenting opinion), and that the trespass policy could not pass the strict standard of scrutiny applicable to regulations forbidding access to such a forum, id. at 40-43. The Virginia Supreme Court "recognize[d] that the Court of Appeals decided this case on the basis that the Housing Authority's private streets constitute a public forum," but the court stated that it "need not resolve this issue * * * and we will reserve consideration of this issue for another day." Id. at 16. In fact, the legitimacy under the First Amendment of the Housing Authority's trespass policy likely turns on the forum analysis of the public property to which it was being applied. Accordingly, if this Court reaches the merits of respondent's First Amendment claim, it should reverse the Virginia Supreme Court's determination that the Housing Authority's trespass policy violates the First Amendment and remand for further appropriate proceedings.
A. The Constitutionality Of The Regulation In This Case Likely Turns On The Forum Classification Of The Government Property At Issue
1. "Th[is] Court has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). "To ascertain what limits, if any, may be placed on protected speech," the Court has "often focused on the 'place' of that speech, considering the nature of the forum the speaker seeks to employ." Frisby v. Schultz, 487 U.S. 474, 479 (1988); see United States v. Kokinda, 497 U.S. 720, 726 (1990) (plurality opinion). Indeed, "[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).
2. "In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed." Perry Educ. Ass'n, 460 U.S. at 45. Among the restrictions the First Amendment imposes on governmental regulation in such a forum is that officials must not be vested with unfettered discretion to regulate expressive activity.8 But "[p]ublic property which is not by tradition or designation a forum for public communication is governed by different standards." Id. at 46. In such a location, "the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Ibid. "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981).
A corollary to that proposition is that, while this Court has invalidated laws that granted too much discretion to public officials to decide who would gain access to traditional First Amendment forums such as public streets and parks, the Court has never imposed similar requirements on regulations restricting access to nonpublic forums. See Hale v. Department of Energy, 806 F.2d 910, 917 (9th Cir. 1986). In Greenburgh Civic Ass'ns, for example, the Court held that authorized postal letterboxes are not public forums and that the postal service accordingly may limit the rights of others to deposit materials in such boxes. In reaching that conclusion, the Court specifically referred to the line of cases in which it had "not hesitated in the past to hold invalid laws which it concluded granted too much discretion to public officials" in traditional First Amendment forums. 453 U.S. at 130-131. But, having concluded that letterboxes are not public forums, the Court also concluded that those standards do not apply to letterboxes. Id. at 131 ("[W]e do not believe the First Amendment requires us to make that leap.").
The Court's conclusion in Greenburgh Civic Ass'ns was correct. Governments own and operate a wide variety of different types of property, including office buildings, housing projects, military bases, law enforcement facilities, and many more. Vesting a gatekeeper at a public park with discretion to permit or deny entry based on the gatekeeper's determination whether a person has an otherwise unspecified valid purpose would likely run afoul of this Court's public forum cases. But no case of this Court suggests that vesting an official at a publicly owned office building or apartment complex with discretion to determine whether a visitor seeks entry for a valid business or social purpose would violate the First Amendment. Indeed, "[t]here is little doubt that in some circumstances the government may ban the entry on to public property that is not a 'public forum' of all persons except those who have legitimate business on the premises." United States v. Grace, 461 U.S. 171, 177 (1983); see Adderley v. Florida, 385 U.S. 39 (1966) (jailhouse driveway not public forum); Daniel v. City of Tampa, 38 F.3d 546, 550 (11th Cir. 1994) (public housing property is "nonpublic forum," because "[t]he official mission of the Housing Authority is to provide safe housing for its residents, not to supply non-residents with a place to disseminate ideas," and "in practice, access to Housing Authority property is carefully limited to lawful residents, their invited guests, and those conducting official business"), cert. denied, 515 U.S. 1132 (1995).
3. A governmental limitation on entry must nevertheless be reasonable and unrelated to a purpose to suppress speech because of disagreement with the speaker's view. See Perry, supra. Those requirements are satisfied here. The Housing Authority's trespass policy is reasonable as a means to help protect residents of Whitcomb Court from the drug dealers and criminals preying on them, and the desire to attack drug trafficking and other criminal activity at Whitcomb Court has nothing to do with a desire to suppress speech. Accordingly, if the Whitcomb Court property at issue in this case is not a public forum (or is not a forum at all), the government may properly vest the manager of the property with much broader authority to permit or deny entrance than would be permitted with respect to a public forum. How broad the discretion may be must be evaluated in light of particular facts. But at the threshold, a court must determine whether the property is a public forum.
B. The Virginia Supreme Court Erred Because It Failed To Decide Whether The Property Was A Public Forum
The Virginia Supreme Court erred in holding the official discretion in this case unconstitutional without first determining whether the Whitcomb Court property is a public forum. Nor is the status of the property entirely clear on this record. Neither the physical character of the property nor the fact that it likely was a public forum in the past is decisive in determining whether it is a public forum now. The issues that are decisive were not reached by the Virginia Supreme Court, and this Court ought not address those issues in the first instance.
1. Although respondent was arrested on a sidewalk, not all sidewalks are public forums. "The mere physical characteristics of the property cannot dictate forum analysis." Kokinda, 497 U.S. at 727 (plurality opinion). In Greer v. Spock, 424 U.S. 828, 831 (1976) (citation omitted), for example, regulations precluded "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities" on a military base and also precluded "distribution or posting of any publication * * * without prior written approval" of the base commander. Unrestricted areas of the base, however, were otherwise freely open to the public on paved roads and footpaths, and no guard was ordinarily posted at the entrance. Id. at 830. The Court nonetheless held that the unrestricted areas of the base were not a public forum, id. at 835-837, and that the regulations prohibiting expressive activities were constitutional on their face and as applied to prohibit electioneering by civilians. Id. at 838. See Kokinda, 497 U.S. at 727 (plurality opinion) (noting that in Greer "[t]he presence of sidewalks and streets within the [military] base did not require a finding that it was a public forum"); United States v. Albertini, 472 U.S. 675, 684-686 (1985) (military base not public forum). Accordingly, under Greer, the mere fact that the area where respondent was walking in Whitcomb Court has the physical characteristics of a sidewalk does not establish that it is a public forum.
2. The fact that the sidewalk on which respondent was walking had once been a public sidewalk also does not establish that it is presently a public forum. The government may convert a traditional public forum into a nonpublic forum, so long as its actions are reasonable and taken for a legitimate purpose, and so long as it takes appropriate steps to make clear the changed nature of the forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) ("The mere fact that a space is on what used to be a public street does not automatically render it a public forum."); Hawkins v. City & County of Denver, 170 F.3d 1281, 1287 (10th Cir.) ("The government may, by changing the physical nature of its property, alter it to such an extent that it no longer retains its public forum status."), cert. denied, 528 U.S. 871 (1999). Indeed, "[i]n some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or changing its principal use." International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 699 (1992) (Kennedy, J., concurring in the judgment). Otherwise, "the State would be prohibited from closing a park, or eliminating a street or sidewalk, which no one has understood the public forum doctrine to require[.]" Id. at 699-700.
3. What is decisive in determining the forum classification of the sidewalk on which respondent was arrested is the extent to which it has in actual fact been closed off to the public, such that it has lost its former character as a public sidewalk. This Court noted in Grace that sidewalks "are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property." 461 U.S. at 179. That was critical in Grace with respect to the public sidewalks surrounding the Supreme Court grounds, because those sidewalks "are indistinguishable from any other sidewalks in Washington, D.C." Ibid. As the Court noted, distinguishing the sidewalk in Grace from the sidewalk on the military base in Greer, the sidewalk in Grace had "no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave." Id. at 179-180. Under those circumstances, the Court ruled that Congress had not succeeded in converting the sidewalks into a nonpublic forum simply by enacting a statute prohibiting certain expressive activities: Congress cannot "transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property." Ibid.
Grace establishes that sidewalks are presumptively public forums, but Greer establishes that that presumption may be overcome. 461 U.S. at 179. Aside from Grace, this Court has not considered the analysis that is applicable when the government seeks to turn property that was a public forum to another use. Among the factors to consider in that analysis would be (1) whether the sidewalk and street in question are, as a practical matter, closed to the public; (2) whether the government has taken sufficient steps to make that closure clear to the public; and (3) whether the purpose served by the sidewalks and streets at issue is consistent with a finding that they have become a nonpublic forum. See First Unitarian Church of Salt Lake City, 308 F.3d at 1130- 1131; Hawkins, 170 F.3d at 1287-1288; see also Kokinda, 497 U.S. at 728 (plurality opinion) ("location and purpose" of the property); International Society for Krishna Consciousness, 505 U.S. at 698-699 (Kennedy, J., concurring in the judgment).
4. The 6-5 division in the intermediate state appellate court was based largely on differing interpretations of the record concerning whether the street on which respondent was arrested remained a public forum. Compare Pet. App. 38 (majority opinion) ("Because the streets appear no different from other streets in Richmond and serve the same function they did prior to privatization, we can discern no reason why they should be treated any differently from any other street or sidewalk.") (internal quotation marks and citation omitted) with id. at 52 (dissenting opinion) (there was "notice to the residents and the public at large in the form of repeated and obvious signage that the streets and sidewalks were no longer 'public' in character"; "there is absolutely no evidence that the streets and/or sidewalks of the Whitcomb Court property remained open to a public flow of traffic, as the majority suggests"). The Virginia Supreme Court did not reach that issue, and this Court ought not, as an original matter, decide whether, on the limited record in this case, the Housing Authority succeeded in its effort to convert the sidewalk at issue in this case into a nonpublic forum. Thus, even if the Court were to determine that a party in respondent's position may bring an overbreadth challenge, the Court should reverse the decision of the Virginia Supreme Court and remand for further proceedings, including a classification, under the public forum doctrine, of the sidewalk in Whitcomb Court on which respondent was arrested.
The judgment of the Supreme Court of Virginia should be reversed.
Respectfully submitted.
Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistants to the Solicitor
1 Under Virginia's notice-trespass statute, Va. Code Ann. § 18.2-119 (Michie 2002), a person who enters the property of another after having received notice not to do so is guilty of the misdemeanor of trespassing. The statute provides:
If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, * * * after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons * * * at a place or places where it or they may be reasonably seen * * * he shall be guilty of a Class 1 misdemeanor.
See Model Penal Code § 221.2, cmt. 1 (1980) ("The common thread running through [criminal trespass statutes] is the element of unwanted intrusion, usually coupled with some sort of notice to would-be intruders that they may not enter.").
2 Even had respondent alleged that he wanted to enter Whitcomb Court in order to carry on a conversation with someone, a policy that prohibited trespassing for that purpose would "not have a sufficiently substantial impact on conduct protected by the First Amendment to render it unconstitutional." City of Chicago v. Morales, 527 U.S. 41, 52-53 (1999) (Opinion of Stevens, J.); see City of Dallas v. Stanglin, 490 U.S. 19, 23-25 (1989).
3 Even the cases in which this Court has ultimately rejected overbreadth challenges have involved parties engaged in expressive activity. E.g., Ashcroft v. ACLU, 535 U.S. 564 (2002) (regulation of sexually explicit material on Internet challenged by organizations that maintain their own web sites); Thomas v. Chicago Park District, 534 U.S. 316 (2002) (permit scheme for gatherings in park challenged by parties seeking to hold political rallies); Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) (obscenity law challenged by booksellers and movie distributors); New York v. Ferber, 458 U.S. 747 (1982) (law prohibiting child pornography challenged by proprietor of bookstore); Broadrick v. Oklahoma, 413 U.S. 601 (1973) (statute regulating government employees' political activity challenged by employees who had engaged in such activity).
4 Similarly, where a party's expressive activity was subject to the challenged regulation, there is always the possibility of a narrowing construction that would carve out certain expressive activity from the reach of that regulation, or a partial invalidation. Cf. Board of Trs. of the State Univ. of New York v. Fox, 492 U.S. 469, 484-485 (1989) (as-applied challenges to a restriction of speech should ordinarily be adjudicated before proceeding to an overbreadth analysis). But a party who has not engaged in expressive activity and is permitted to bring an overbreadth challenge has no such incentive to find a narrowing construction; such a party is likely to argue for the broadest possible invalidation of the challenged regulation, to ensure that it cannot be applied even to his, non-expressive conduct.
5 When asked whether she has given permission to people who want to enter Whitcomb Court "to pass out flyers for example, or hold church related meetings," Ms. Rogers agreed with counsel's statement that "[s]ometimes you do and sometimes you don't." Pet. App. 101; see id. at 16. She went on, however, to state that "I do not deny anyone permission to hand out flyers, the ones that I have seen," id. at 102, that if it is "something [she is] uncomfortable with, [she] will refer it to [her supervisor]," ibid., and that she also "refer[s]" matters "to the community council and they meet with the board and the residents to decide," id. at 101. In sum, her testimony establishes that she does not always personally grant permission. It does not concretely establish that anyone who has sought entry to Whitcomb Court to engage in expressive activity has ever been denied. Nor does it establish that anyone who has been engaged in expressive activity, whether with or without permission, has ever been arrested. J.A. 4-38, 46.
6 In Cox v. Louisiana, 379 U.S. 536 (1965), and Edwards v. South Carolina, 372 U.S. 229 (1963), the Court addressed First Amendment challenges to breach-of-the-peace statutes as applied to the conduct of defendant civil rights demonstrators. Cox, 379 U.S. at 544-552; Edwards, 372 U.S. at 234-236. At the end of the Court's discussion in each case, it noted that the statutes would also be facially unconstitutional for overbreadth. Cox, 379 U.S. at 551-552; Edwards, 372 U.S. at 238. As the Court later explained in Broadrick, however, "[t]hese additional holdings were unnecessary to the dispositions of the cases" and were not relied on in a later case addressing a conviction under the same breach-of-the-peace statute at issue in Cox. 413 U.S. at 614 n.13 (internal quotation marks omitted).
7 This Court has explained that the function of facial overbreadth adjudication, "a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." Broadrick, 413 U.S. at 615. The Housing Authority's trespass policy regulates conduct-entry on to Housing Authority property-not speech. Accordingly, the scope of the overbreadth doctrine as it applies to such a policy is "attenuated."
8 See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 763-764 (1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969); Kunz v. New York, 340 U.S. 290, 293-294 (1951); Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Lovell v. City of Griffin, 303 U.S. 444 (1938).


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Portrait Series- LanaPosted: December 15, 2014 Filed under: Personal Work Leave a comment
Part of a new portrait series. Check out my site for more.
Happy Halloween!Posted: October 31, 2014 Filed under: Personal Work | Tags: Costumes, Disney, Halloween, Maleficient Leave a comment
Yesterday I had the pleasure of photographing the very talented Sarah Ward. She constructed this fantastic Maleficient costume. Enjoy!
Cameron Levin DesignPosted: October 1, 2014 Filed under: Editorial, Personal Work | Tags: Cameron Levin, Fashion, Seattle Leave a comment
Shot this recently for the very talented Cameron Levin
Red White and BluePosted: July 4, 2014 Filed under: Editorial | Tags: Americana, Fourth of July, Freedom, Independence Day, Liberty Leave a comment
A New AdditionPosted: June 13, 2014 Filed under: Personal Work | Tags: birth, infant, life, newborn, pregnancy Leave a comment
On June 8 2014 at 10pm my beautiful daughter, Ida Wilder, entered this world. We love you!
April is the Cruelest MonthPosted: April 17, 2014 Filed under: Editorial Leave a comment
The Real HousewivesPosted: April 2, 2014 Filed under: Editorial | Tags: Spring Fashion Leave a comment

subset: commoncrawl


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Portfolio > The St. James
The St. James
307 High-Rise Luxury Apartment Units
The St. James is a new, mixed-use high-rise development in Center City, in the heart of downtown Philadelphia. The 45-story tower offers 307 new high-tech, luxury apartment homes with a desirable Washington Square location and views. Situated on a one-acre site, The St. James development involved the rehabilitation and repositioning of a neighboring bank building as office and restaurant space, additional retail space is also available in the tower. Amenities include a 60-foot long, indoor pool and a fully-equipped fitness center. Apartments feature nine-foot ceilings, floor-to-ceiling windows, and private terraces. Every new home in The St. James also includes pre-wiring for high-speed Internet access, an advanced temperature control system allowing simultaneous heating and cooling, separate showers and tubs in every master bathroom, full-size washers and dryers, and GE Profile appliances.
The St. James, Philadelphia, PA Awarded Best High-Rise Apartment Community
The St. James Announces the Opening of Leasing Office
The St. James Honors Breast Cancer Awareness Month in Philadelphia
2006 Pillars of Industry Award
2006 Pillars of Industry Award
2004 Philadelphia City Paper Reader's Choice Award
2003 Mid-Atlantic Rental Apartment and Condo Industry Awards


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Telltale Games made its presence felt on the Electronic Entertainment Expo show floor last week thanks to its highly anticipated fifth chapter in the "Back To the Future" saga, as well as the Jurassic Park game, based on the hit Steven Spielberg franchise. But the company also had a lot to say about the upcoming "The Walking Dead" game based on the popular Image Comics series by creator Robert Kirkman, co-creator Tony Moore and long-running series artist Charlie Adlard.
Though gameplay elements were not demonstrated for E3 attendees, Telltale did talk about new features that would be included. As such, the game will stray a bit from the approach the AMC series took in its first season, though it will remain true to Kirkman's vision. The game features a new lead character by the name of Lee Everett, a prisoner who manages to escape the zombie horde unscathed, though he's visibly shaken by what's occurred. Everett is joined on his journey through the game by a little girl named Clementine, though her involvement in the story hasn't yet been revealed.
Rick Grimes, the leader of the band of survivors whose adventures and struggles are documented on television as well as in the comic, will also be involved with the story, though he's still in his coma when the game's story starts. How he got there, and how Lee and Clementine got stuck in this situation, should be explained in the multi-part game, which will involve quick-time event action sequences (basically, hitting the right buttons at the right time in order to survive) and occasional puzzles to solve. "The Walking Dead" also features an innovative interactive camera system, designed to further heighten the tension as you face the undead.
Telltale Games' "The Walking Dead" is set to debut in early 2012


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I'm not really a bath person. I'd much prefer a quick shower then get out and get ready. Sitting in a pool of hot water wasn't really my thing or so I thought. Enter Lush's Candy Mountain bubble bar that we got in a Christmas gift box. I hadn't used any of Lush's bath products but I thought it was time to give it a go. I got the bath water temperature just right so I wasn't coming out like a lobster and the bubble bar made it smell gorgeous. It was lovely. So here starts my liking of baths and my adventures into new exciting bath products!
I went into Lush last week to check out the new Valentine's products they've just launched. To be honest I wasn't overwhelmed by any of them so I ventured around the rest of the shop. I managed to come out with a bubble bar, a bath bomb, a massage bar and this bubbleroon.
According to the Lush website this little bubbleroon, based on the shape of a macaroon, is a bubble bar. So to release the bubbles you have to crumble this under the tap as your bath is running. There were three different types of bubbleroons in the Lush store but I picked up the Yuzu and Cocoa one. This smells sweet and quite strongly of coconut which makes makes you feel like you are in a bounty.
I only used half the bubbleroon as I'd seen people suggesting that half was sufficient but unfortunately I forgot to add it whilst the bath was running. I added it afterwards and swashed my hands around in the water to get the bubbles that you can see in the bath. It was a lovely bath but the bubbles soon faded although the smell lingered.
At only £3.25 for what can be two lovely soaks in the bath I think these little bubbleroons are worth it. The other two scents are The Green Bubbleroon and Rose Jam.
Have you tried these before? What other Lush bath products do you love?
Wednesday, 29 January 2014
Scrub a dub dub - Lush Bubbleroon Review
Labels: bath, bubble bath, bubbleroon, bubbles, cocoa, lush, macaroon, sweet, treat, yuzu
6 comments
Ahhh, that looks lovely! XxReplyDeleteReplies
It is gorgeous :) xDelete
Think I may have to pick one of these up in my next Lush shopping trip!ReplyDelete
I nominated you for a Versatile Blogger Award!
Laura x
Laura's Land of BeautyReplies
Yes it is gorgeous :) aw thanks sweetie! :) xDelete
This was one of my first ever lush products!ReplyDeleteReplies
Gorgeous isn't it! :) xDelete
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There's something sad about a closed drive-in theater.
No movie names on the marquee, no smell of popcorn in the air and nothing to light up the darkened screen.
But that's no longer the case in Pendleton County.
The newly revived Warner's Drive-In theater will reopen Friday night for its first full season since closing in 2014.
And local folks couldn't be happier that the beloved entertainment landmark, located just north of Franklin on U.S. Route 220, is part of their lives once again.
The story of its return is worthy of a big screen production, because community support made it possible.
In an era when conflict is common, community leaders, citizens and businesses instead banded together to preserve the place where so many memories were made.
A nonprofit organization was formed, the Warner-Drive-In Cultural and Resource Center Inc., and enough money raised initially to pay for a new digital projector as well as some concession area repairs.
None of that was cheap.
Since digital projectors can cost upwards of $100,000, it was a daunting but successful fundraising effort effort that included everything from bake sales to a silent auction, said board member Gail Price.
The group's big break came when a woman donated her late parent's home to the organization. It was sold and the proceeds financed a large part of the new projector.
Price was in a particularly pivotal position then because she served as executive director for Pendleton County Convention and Visitors Bureau as well as its Chamber of Commerce.
"Honestly, I'd have to say this was a perfect storm of people who wanted the drive-in to reopen, those who were willing to work hard to make it happen and others who were also part of the logistics. I don't think I have ever seen a project other than this one where everyone agreed on what they wanted," she said.
Although the land has been leased for two years, organizers are working to secure grant funding to purchase the facility before moving ahead with other improvements.
But that's only the beginning.
The long-term plan is to create a cultural community center that will also include a drive-in theater museum featuring its original equipment.
Organizers also want to build a stage at the screen's base, repair the roof and interior of the building inside the screen, and put up a pavilion at the back of the property.
It would no longer be as seasonal, and instead could be a home for student-produced music, dance and theater.
Movies were shown for two months last fall, and each time a crowd was on hand to see the family-friendly films like "Finding Dory" and the "Secret Life of Pets," said Mike Mallow, a volunteer who serves as the chief projectionist.
The "Fate of the Furious" is the season opener, and is also part of the official schedule for this weekend's Spring Fest. Movies will be shown each Friday and Saturday night through mid September. A fall festival will cap off the season on Oct. 28-29.
Getting to this point is a dream come true, Mallow said, who enjoys taking his young daughter with him while he volunteers at the drive in.
"This is all about two things, our community and families. But it is also important in another sense because I think we are only the second drive-in theater in the country that's owned by a nonprofit. That says alot about this project too," he said.
Board member Jessica Basagic has a special connection to the project since her great grandfather Charlie Warner built the theater and opened it on April 2, 1952, with her grandfather Harold Warner.
She grew up there, and hopes other youngsters will share this special experience.
"I remember being a kid, and playing ball with my friends in front of the curved 50-feet high and 75-foot wide screen before the movies would start. It was like a family reunion every Friday and Saturday night," she said.
"Now families from Pendleton County and surrounding areas can continue to enjoy parking on the hill in front of the screen to share the enjoyment of movie night watching under the stars like I did as a child growing up."
Times haven't changed all that much, because the back row is still popular with young people who flock there, Price said.
"I guess you could say that these old traditions are new again."


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This is the third and final part of the Ninja Tune trilogy (1,2) – an interview commissioned by Ninja Tune for their own magazine, The Pipe. On the couch were Chocolate Weasel – Mark Royal (aka T-Power) and Cris Stevens – who released Spaghettification through Ninja Tune in 1998. The interview took place in Mark's London flat and was aided by a rather fine batch of puff. If the text veers off into both inner and outer space on more than one occassion (I can but apologise for the inclusion of the paragraph on "star matter" and carbon synthesis), I hope you'll forgive the poor little addled brain that was gamefully trying to hold things together.
Being alive is more than just a game of two halves. Ninja Tune's drum'n'bass duo CHOCOLATE WEASEL blow the whistle and take a pot shot at the goal of enlightenment.
Look around your space, outside and inside, and calculate the amount of information that you are being bombarded with right at this moment. You may be conscious of the brightly hued distractions such as television, magazines or advertising, but consider the thought that the majority of your environment pushes information in a way that penetrates your mind subconsciously.
We experience a glut of information and misinformation at almost every waking moment of our lives. Technology such as the internet, cable and satellite may serve not to actually enhance our learning or to expand our field of awareness, but rather to simply add more useless junk to the already polluted highways and byways of the brain.
Information exists in a state of chaos which simply affords unscrupulous politicians, journalists and activists the opportunity to do away with balanced perspectives and effectively promote their own agenda. Hence we create a culture where propaganda thrives unchecked, where campaigns of biased misinformation ensure that we are as far away from the truth as possible, where the Rupert Murdoch-owned "X-Files" serves only to turn people away from the reality that multinational corporations already control our daily lives through power of capitalism.
How this links with the Ninja Tune project "Chocolate Weasel" is fairly simple. Mark Royal (alias drumnbass bod T-Power) and compadre Cris Stevens know they have to play the media game to promote their album, in order to sell units, in order to make money, in order to eat, in order to survive, in order to stay on the ride. They are also intelligent enough to realise that they can hijack such blatant sales promotion in order to offer thoughts and ideas that might help us to bring a sense of order to the information chaos, that helps us to make connections – the kind of script that rarely fills column inches in the world-wide entertainment media. It may appear to be some form of cyclical perfection, but the promotional process still remains embedded in the machinery of consumerism.
"I have a problem with the idea of selling music, because I believe that everyone should make music," says Mark, sitting on his bed in his Walthamstow home cum studio. "Making music is a fundamental part of being human, but we've turned it into this thing where we take people's skills as an individual and we've created a divide. You have specialists in societies and music has just become another specialist product to sell to people. It's a big fucking problem knowing that you've got to sell units to do something that you enjoy.
"If you're going to try and pinpoint a problem, the problem is money and mankind's desire to horde more and more of it. Society's becoming increasingly geared towards making money and fuck who you step on to get to where you're going. Money is the root of the problem and if you really want to separate good and evil, then money is the root of all evil. It really does corrupt anything good about mankind."
Such a philosophy ensures that Mark and Cris will never venture near the territory of the "sell-out" – a land populated by artists who are driven by money rather than messages. "There are points when you think fuck it," admits Mark, "let's do a stupid tune, get some daft blonde model in there, sing some song about a Barbie doll or something equally as stupid and just go and cane it. But we may see it as caning it, but how do people actually receive that it in the pop world? What effect is that having on the psyche of people and can you actually deal with the implications of what effect you're having on some six year old girl sitting in her bedroom? They say it's all harmless fun, they're just kids… but you're feeding information into these people and parents don't have the time to actually school their children. They're just like 'there's the television, sit in front of it'. TV has become their God and that's where they are learning their reality from."
Of course capitalism and consumerism are easily identifiable targets, but the root of the world's problems lies deeper still.
"I don't think a lot of people actually understand the problem," claims Cris, "it's become confused. You can't apportion blame to any one bit of society – there are so many things that are corrupt like science, politics and religion – it's not just one thing. But I don't think a solution will be found. It's just the on-going struggle that is life."
"Solutions create more problems," believes Mark, "there's never an ultimate fix. It all boils down to the second law of thermodynamics and we're trying to stop the rising entropy. But it's a fundamental law of existence that we cannot stop it. We're not in control. As much as we think that we are moulding our own destiny we're not. We're just there for the ride."
The late comedian and modern-day soothsayer, Bill Hicks, similarly likened our voyage through life as one long ride with all the ups, downs, twists and turns that are inherent in any speeding rollercoaster. At the close of a performance, he would offer what he termed his "vision", a vision that is – undoubtedly – the closest we are ever likely to get to a "solution". He claimed that we could easily take the trillions of dollars spent on nuclear weapons and defence every year and use it to feed and clothe every single human being on the planet (which it would pay for many times over), subsequently allowing us "as one race, to explore outer space together, in peace, forever."
Mark approves of the idea, but is equally aware of the improbability of it becoming a reality. "It is so fucking simple, but we just won't do it. There's an inbred fear in society and we don't seem to be confident about the species. Someone's obviously realised that a long time ago and that's why consumerism took off. When people are unhappy, they're scared and they're going to buy like buggery. They just pander to that and they feed us what we want to see."
Of course, there are hundreds of thousands of people worldwide that are motivated enough to stage their own form of vociferous protest against consumerism and the slow death of the planet. However, due to the dubious self-interest of those that own the mass means of communication, the promotion of any unpopular ideology has had to become more subtle. High profile activism such as demonstrations, marches or physical entrenchment may raise awareness, but there is rarely any result shift in public sympathy. The blame for this seems to lie squarely at the feet of the media.
"There is definitely a lot of positive action going on, but the way it's all portrayed in the media is a problem in itself. Take the Newbury bypass – they were all made out to be a bunch of fringe nutcases, but there were middle aged people and old ladies involved in the protest – completely sane, normal people, which – of course – all of the protesters are, but because their clothes are scruffy, the media say they're mad."
The media have also been almost singularly responsible for an ill-conceived drugs education campaign that seemingly whips parents and authority figures into something akin to a rabid frenzy. Positive drugs messages are hard to find, yet individuals such as Keith Richards and Aerosmith's Steve Tyler manage to fuse a dual lifestyle of being acceptable corporate salesmen whilst consistently imbibing near-lethal doses of illegal drugs. The worldwide drugs message may be hypocritical – but would we expect it to be any other way? If sensible drug use can open hitherto unused regions of the brain and promote learning, love and tolerance, what would that do for a global economy based on subjugation, fear and racial bigotry?
"Drugs go along way to accelerate the learning process," claims Mark, one of the many who found an escape route from the pill-popping insanity of the acid house years. "My problem isn't the use of drugs to expand the mind, my problem is drug use for hedonism – because that becomes a product and it's not something that we use wisely. You have these cases where people suddenly wake up and suddenly have these great realisations whereas some people never get beyond the stage of seeing pink elephants.
"Doing hallucinogens put me on the edge of my existence and that just kicked me right out of where I was. I had a major wake up call. I did realise that I had been a total wanker to all my friends. I still find myself to this day apologising to my parents for my teenage years – 'I'm sorry I was such an arsehole.'"
The use of drugs on earlier T-Power projects is well documented, but it's a practice that ceased during the recording of the Chocolate Weasel album, "Spaghettification", with interesting results. "It wasn't just for the music purpose," explains Cris, with a degree of guarded satisfaction, "we were just trying to get a bit of our lives back. We were just smoking insane amounts of skunk and it was developing into a bad habitual hang-up. Suddenly we were doing tracks in days instead of a week which was just amazing. It was like 'I'm not stoned, I can actually do something.' It's an easy myth to buy into that you just need to get caned to do something really creative."
However, acid guru and psychologist, Timothy Leary, claimed that cannabis artificially triggers the "fifth circuit" of the brain, the "gear" reserved for our dealings in multi-dimensionality, loss of gravity and space flight (the phrase "getting high" therefore seems to make more sense). Leary argued that drugs such as cannabis can assist rather than hinder us in our evolutionary process. His theory continued up the "gears" to the final, eighth circuit where the human race learns the craft of atomic engineering and the ability to build "self-replicating nanocomputers".
Mark also agrees that the human race has a long way to go before it reaches its ultimate purpose. "I've been reading about how stars work, how they synthesise heavier elements, but they stop burning at silicon. They go supernova at that point – they can't create silicon without going critical. We're actually based on a carbon 12 chain and a carbon based lifeform cannot exist in the first generation of a star, so therefore our sun is second generation. Maybe we are the next chain, because we're basically star matter, and maybe we have to now learn how to synthesise silicon – we become the next synthesis [the third generation]. Maybe we create universes and get into quantum information storage and maybe we actually start to define the laws of our own universe."
In our late twentieth century arrogance, we assume that we are highly evolved and that we are close to the "top end" of the evolutionary scale. Mark's theory might suggest that we are still effectively grunts, scraping our knuckles on the primordial turf, and that the creative fusion of our organic selves with our self-conceived technology is simply a future that we have to accept.
The profound interest that Mark and Cris actually have in the game of being alive is, contrary to what you might think, perfectly represented in their music. "Spaghettification" is undoubtedly brighter and more celebratory than their previous work, bringing a much-needed sense of humour to traditionally dark environs of drum'n'bass.
"The first album was like 'wey-hey! this is pukka, I've just found philosophy, everyone should love one another', then the second album was 'oh fuck, no one does' and then coming into the Ninja Tune album it was 'bollocks, so what?'."
Optimism in the face of overwhelming global problems is perhaps the ultimate lesson that we have on offer. Throughout their lives, Mark and Cris have simply made the decision to listen and learn and to intelligently decipher the information chaos. They are making connections within the maelstrom that we would do well to heed, but – by learning from their example – we have to get out there and discover things for ourselves. And – of course – we should really be having a good time in the process.
"I am quite thankful I'm living," concludes Mark, "no matter how difficult it is. It's a brilliant experience. You can only die at the end of it, so what's the fucking problem? Let's just get on with it and enjoy it."
Stuart Buchanan


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The recent volatility in the open currency market had its roots not in the shortage of non-dollar foreign currencies but in the behaviour of foreign exchange companies, inquiries reveal.
Though, at the peak of the crisis, the rupee that had fallen to near Rs110 per dollar for customer buying in the open market, it has now bounced back (rising to Rs107.20 on Dec 8) although the gap between interbank and open market currency has yet to be narrowed.
On Dec 8, the gap was in excess of 2pc, against the ideal 0.5-1.0pc, as in the interbank market the rupee was trading at Rs104.76 and Rs104.77 for buying and selling.
Insiders say the recent crisis surfaced when smugglers of non-dollar foreign currencies refused to accept 'book entries' and instead demanded cash payments against their sales
Central bankers point out that the ability of currency speculators and smugglers to jolt the exchange rate has noticeably weakened.
"Immediately after a crisis surfaces, we stem it sooner than later," says a senior central banker adding that it is the third straight year that the attempts to destabilise the rupee have lost momentum both in frequency and in strength. But he admits that the difference between the open and inter-bank exchange rates remains too big and 'has to be brought down'.
Central bankers say ideally the gap between the two exchange rates should be kept at 0.5-1.0pc.
They say that exchange companies have been told to keep this point in mind, and claim that by the time this write-up is published further gain in rupee value in the open market should reduce the gap between the interbank and open forex market.
In the past three years, the SBP has made reporting requirements for forex firms more stringent and improved its on-site and off-site inspections.
Insiders say the recent crisis surfaced when politically-powerful currency smugglers and hoarders of non-dollar foreign currencies refused to accept 'book entries' at some leading forex firms and, instead, demanded cash payments against the sales of these currencies.
"At least two forex firms declined to buy a huge stock of the pound sterling and euro from hoarders, upon which the sale of these currencies in the open market went down," explained an industry insider.
Besides, currency speculators who normally sell the greenback to these two and other forex firms at lower-than-advertised rates (to whiten their money) also stopped their sales. Perhaps, they had found ways of smuggling dollars out of the country on their own.
Left with a shallow supply of non-dollar foreign currencies, (or third currencies in forex dealers' parlance) forex companies that normally sell these currencies in Dubai and bring back equivalent US dollars were unable to generate enough supply of dollars. This happened at a time when, due to the refusal by some big currency speculators to sell dollars at the rates offered by the forex firms, the supply of dollars in the open market was already low.
The question arises that why, in the first place, two particular forex companies, or any other for that matter, were averse to making cash payments against the buying of third currencies?
"The answer is that they were employing piles of rupee cash to buy dollars instead, to smuggle them out of the country for undeclared investment in Dubai's gold market where some speculators, backed by them, were making speculative buying of gold," says one senior banker with background knowledge of the open market currency crisis.
In a more audacious move, some currency and gold smugglers were found making an attempt to physically smuggle third currencies and also gold from Pakistan to Dubai, to get their share in gold speculation there. Among them were some 'unknown people' as well as regular currency hoarders. But, according to media report, their attempt was foiled by the authorities concerned.
Officials of exchange companies say the gap between interbank and open market is wider than normal because, according to them, the currency crisis originated due to their not getting permission, in recent weeks, to bring back home the dollars they had purchased in Dubai by selling third currencies.
According to them a part of the amount was withheld by the authorities, without any valid reason. But, after the intervention of Finance Minister Ishaq Dar, the situation is now coming back to normal.
They say that once supplies of dollars, through this channel, (and on increased sales within Pakistan by those who had amassed them during the crisis) improve, the rupee will gain further in the open market and the gap between the interbank and open forex market will return to 1pc, the level that has, for so long, been maintained.
Executives of forex companies also lament that, (unlike in the past) during this crisis banks did not come to rescue the open market by selling a sizable amount of dollars to them against the rupee.
The SBP at times intervenes in this way and asks banks to sell dollars to forex companies at the prevailing interbank market rate for a few days.


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Green Island has an amazing history including many 'Firsts'; such as the world's first underwater observatory and the first island movie theatre!
Pre- European settlement Green Island was used by local aboriginal tribes as fishing grounds, as well as a sacred ceremonial site for manhood initiations.
1770: Lt James Cook sighted Green Island on June 10, 1770. According to tradition, he named the Island after Charles Green the Chief Observer and Astronomer on his ship, the HMS Endeavor.
1857: European colonization commenced when a sea cucumber smoking station on the Island was founded.
1890: Occasional pleasure cruises started traveling to Green Island
1924: The Hayles Family commenced a regular ferry service from Cairns to Green Island operating every 2nd Sunday.
1936: Green Island was declared a national park.
1940's: The First guest house was opened.
1948: The introduction of the Glass Bottom Boat replaced the old method of a floating glass box to view coral.
1954: Opening of the world's first Underwater Observatory.
1960s: Establishment of Marineland. Since 1971, it has operated as Marineland Melanesia, crocodile farm, aquarium and museum.
1961: The Barrier Reef Theater opened on Green Island – the first movie theatre on an island. It featured the wonderful film work of Noel and Kitty Monkman, pioneering underwater photographers from the 1930s. It was operational until the early 1990s
1965: The (second) Coral Cay Hotel on Green Island was opened.
1970: Queen Elizabeth II visited Green Island during her Royal Australian Tour.
1974: The surrounding Great Barrier Reef was declared a National Marine Park.
1983: The Hayles family pioneered the use of the semi-submersible boat for coral viewing.
1992: Daikyo Australia commenced redevelopment of Green Island Resort.
1993: Commissioning of tertiary sewage treatment plant.
1994: Official opening of the $43 million eco-friendly Green Island Resort.
2001: Commissioning of desalination plant (producing over 55,000 liters of freshwater daily.)
2004: Opening of Resort Day Spa facilities.
2005: The Quicksilver Group acquires Green Island Resort and Great Adventures island operations after the successful purchase from Daikyo.


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Satisfy your burrito cravings with an easy to make Beef Burrito Skillet. Cook it on the grill for a tailgating friendly dish, or on your stove at home!
I'm so excited it's almost football season! And by football season – I mean college football season. Go Buckeyes!! One of our favorite things to do every Saturday is get together with friends to watch the game. Sometimes we're are Treena's house, sometimes we have the gang over here, but its' always a great time with lots of beer and good food!
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This Beef Burrito Skillet kicks ass! It's a totally yummy, man food, one pot meal that everyone will keep coming back to. I made this skillet on the grill and brought it into the boys. I was going to plate it up, and they said just grab some forks. We stood around the kitchen island and grubbed so hard. Mike said he would add fewer beans, but he's also the guy that doesn't like beans in his chili at all. I thought it was perfect. I have no idea why I didn't grab some avocados at the store to top this with. Next time darlings. Next time.
And I couldn't rub all these goodies in your face without the chance to hook you up too! So if you scroll to the bottom of this post, you can enter to win a $300 prize pack of WiltonArmetale Gourmet Grilling products for yourself! [Giveaway is closed]
- 1 pound ground beef
- 3/4 package taco seasoning mix
- 15.5 ounce can red kidney beans, drained and rinsed
- 1 cup your favorite salsa, (this is a great way to add more heat by using spicy salsa)
- 1 cup water
- 4 6" flour tortillas, cut into 1" pieces
- 1 1/2 cup shredded Colby Jack , or cheddar cheese
- 2 tablespoons sour cream, or more if needed
- Sliced green onions, for garnish
- Avocado
- Tomato
- Olives
- Guacamole
- Pico de Gallo
- Light and prepare charcoal in your grill (or turn your grill to medium-high for propane grills).
- Place a WiltonArmetale Deep Dish Sizzle Skillet (or any large cast iron skillet) on the grill. Add ground beef to skillet, and cook until browned through, 8 to 10 minutes.
- To the skillet, add taco seasoning, water, salsa, and beans. Stir ingredients to combine and distribute spices evenly. Bring to a simmer; cook for 5 minutes.
- Add tortilla pieces, and stir to combine. Top with cheese, and cover grill. When cheese has melted remove from heat.
- Top with sour cream, green onions, and any other garnish you like. Portion individual servings, or let everyone grab a fork and eat right from the skillet!