COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
ROBERT V. GALLUP
MEMORANDUM OPINION * BY
v. Record No. 2921-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 17, 1998
CITY OF SUFFOLK
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Barry R. Taylor (Claude M. Scialdone;
Scialdone & Associates, on brief), for
appellant.
B. Kay Wilson (C. Edward Roettger, Jr.;
Office of the City Attorney, on brief), for
appellee.
Robert V. Gallup (defendant) appeals his conviction for
violating § 18-11.1 of the Suffolk City Code, a local ordinance
regulating public nudity. He argues that the ordinance is
overbroad, "under the First Amendment guarantee of free speech,"
vague, "under the due process guarantee of the Fifth and
Fourteenth Amendments," and that the trial court erroneously
denied defendant standing to rely upon such constitutional
principles. Finding no error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to the
disposition of this appeal.
While passing defendant's home in an automobile, a citizen
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
observed defendant standing nude "beside his house," clearly
visible from the roadway. Defendant was cited for a violation of
Suffolk City Code § 18-11.1. At trial, defendant admitted
"working in the back yard of his home," naked, at the time of the
offense, but denied any intention to expose himself to others.
Defendant testified that he would have "step[ped] behind the
house, garage, or the truck to preclude anyone from seeing," had
he heard an approaching vehicle. Defendant had been charged with
violations of the ordinance on no fewer than three prior
occasions.
Following defendant's arrest, Suffolk Code § 18-11.1 was
repealed and replaced with an ordinance which appellant states,
"mirrors the Code of Virginia's version . . . [and] probably is
constitutional."
Constitutionally Protected Free Speech
"[F]reedom of speech under the Constitution is not
absolute." Hernandez v. Superintendent, 800 F.Supp. 1344, 1349
(E.D. Va. 1992).
The test for determining whether conduct
qualifies as protected "speech" is whether
"[a]n intent to convey a particularized
message was present, and [whether] the
likelihood was great that the message would
be understood by those who viewed it." Thus,
proof of three elements is required to
establish that conduct is communicative or
expressive within the meaning of First
Amendment analysis: (i) requisite intent;
(ii) a particularized message; and (iii)
likely understanding by viewers. The nature
and context of the conduct are essential
considerations in the application of this
test.
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Id. (citations omitted). Hence, "[f]reedom of speech presupposes
a willing speaker," Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771 (1976), and conduct
"intended to express an idea . . . ." Palmer v. Commonwealth, 14
Va. App. 346, 348, 416 S.E.2d 52, 53 (1992) (citing United States
v. O'Brien, 391 U.S. 367, 367-77 (1968)).
Here, defendant clearly did not intend to present himself in
public "au naturel." To the contrary, he testified that he
exercised care to avoid public view, hiding himself whenever
anyone approached. Thus, defendant's conduct had no expression
or communicative purposes and did not implicate the First
Amendment.
Overbreadth Under the First Amendment
"'The First Amendment doctrine of . . . overbreadth is an
exception to the general rule that a person to whom a statute may
be constitutionally applied cannot challenge the statute on the
ground that it may be unconstitutionally applied to others.'"
Perkins v. Commonwealth, 12 Va. App. 7, 11-12, 402 S.E.2d 229,
232 (1991) (quoting Massachusetts v. Oakes, 491 U.S. 576, 581
(1989)). "The doctrine is predicated on the danger that an
overly broad statute, if left in place, may cause persons whose
expression is constitutionally protected to refrain from
exercising their rights for fear of criminal sanctions." Oakes,
491 U.S. at 581 (citation omitted).
However, "overbreadth analysis is inappropriate if the
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statute being challenged has been amended or appealed." Id. at
582 (citing Bigelow v. Virginia, 421 U.S. 809, 829 (1975)
(although "Virginia courts erred in denying . . . standing . . .
where 'pure speech' rather than conduct was involved," "the
statute's amendment [made] . . . the issue of its
overbreadth . . . moot for the future")). "Because it has been
repealed, the former version of [Suffolk Code § 18-11.1] cannot
chill protected expression in the future. Thus, . . . the
overbreadth question . . . has become moot . . ., and we do not
address it." Id. at 583-84.
Vagueness Under the Fifth and Fourteenth Amendments
Defendant further complains that "because the ordinance is
so vague . . . it should be struck down as a violation of due
process of law in that it fails to provide proper notice of what
conduct is proscribed and what is not."
"When, as here, a statutory challenge does not implicate a
constitutionally protected right, the 'narrow question is whether
[the legislation] is vague as applied to the defendant['s]
conduct . . . .'" Commonwealth v. Carter, 21 Va. App. 150, 153,
462 S.E.2d 582, 584 (1995) (citation omitted). Here, the
defendant's prior experience with the original ordinance clearly
informed him that the conduct in issue was proscribed by law.
Hence, we likewise reject defendant's vagueness challenge.
Accordingly, we affirm the conviction.
Affirmed.
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