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Defending against Virginia’s simulated masturbation law

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Virginia law makes it a Class 1 misdemeanor to engage in simulated masturbation in public. You read that right:

“Va. Code § 18.2-387.1 Any person who, while in any public place where others are present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372, engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor.”

Here are a few Constitutional items to consider for defending people accused of simulated masturbation:

–          At least if the defendant is not alleged to have touched his clothed or unclothed genitals, this could be characterized as First Amendment-protected free expression. If flag-burning is First Amendment-protected (it is so protected, Texas v. Johnson, 491 U.S. 397 (1989)) then a wide range of public sexual expression is also protected. (For First Amendment protection of sexual expression, see, e.g.,  City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000) (First Amendment protection for topless dancing in strip clubs); Los Angeles v. Alameda Books, Inc., 535 U.S. 425  (2002) (First Amendment protection for adult video stores).)

–          Strong Due Process protection applies to sexual activity, at least among consenting participants. Lawrence v. Texas539 U.S. 558 (2003). Just as public kissing cannot be outlawed to shield others from observing the kissing, simulated masturbation cannot automatically be outlawed.

–          Virginia’s simulated masturbation code — Va. Code § 18.2-387.1 — addresses the following phrase that is subject to Constitutional Due Process vagueness and overbreadth challenges: “explicitly simulated acts

–          The obscenity statute referenced in Virginia’s public masturbation statute contains vague and overbroad terms. Moreover, First Amendment free expression rights apply unless the performance is obscene under the Supreme Court’s Miller Doctrine, which is much narrower than the Virginia Code’s definition of obscenity: Miller v. California, 413 U.S. 15 (1973).

–          Virginia’s only lawful grounds for banning simulated masturbation might be limited to obscenity, fighting words, and indecent exposure. The fighting words exception to First Amendment protection is narrow. Chaplinsky v. New Hampshire315 U.S. 568 (1942) (fighting words); Cohen v. California, 403 U.S. 15 (1971) (no crime occurs where a person merely wears a jacket proclaiming “Fuck the Draft” in a courthouse hallway).

As much as acts of simulated masturbation may be creepy, at best, they cannot automatically be outlawed in conformity with the Constitution.