"I have used [the statute] for decades to keep pornographic movies out of Staunton," Robertson said, referring to arrests that followed the showing of an X-rated movie at a downtown theater in the 1970s. "And we haven’t had an X-rated movie in town since."
But if an entrepreneur wants to open an adult store here, the city may not be able to prosecute for obscenity.
"People have to realize that obscenity has a specific legal definition that has to be met in order to convict someone," said attorney Josh Wheeler, associate director for the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. "It is not simply material that involves nudity or is offensive."
Wheeler said the Virginia statute describes a three-part legal definition of obscenity — much like the Miller test, named for a landmark 1973 U.S. Supreme Court decision. Both the statute and the Miller test ask: Do applied community standards find that the material appeals to the prurient interest? Is it patently offensive sexual conduct defined by state law? And does the work, taken as a whole, lack serious literal, artistic, political or scientific value?
"It is actually a pretty high standard to meet," Wheeler said.
Staunton City Attorney Doug Guynn has said there are no zoning laws prohibiting the establishment of an adult video store.
"For us it’s a land-use issue. The city does not regulate adult business as such," he said.
The city also would not instigate action against a business owner, Guynn said. "It’s largely a complaint-driven process."