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. 
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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repealed and replaced with an ordinance which appellant states, 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.