Robert v. Gallup v. City of Suffolk

• Court: Court of Appeals of Virginia
• Decided: February 17, 1998
• Docket: 2921961
• Status: Unpublished

Opinion

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repealed and replaced with an ordinance which appellant states,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.

- 2 - 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

- 3 - 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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