Staunton, Virginia- Minutes before a 5 p.m. deadline Friday, lawyers for a Staunton adult video store clerk facing obscenity charges filed a motion that could someday land the case in the Virginia Supreme Court.

The motion – filed on behalf of Tinsley Embry, his co-defendant Rick Krial, owner of After Hours video, and Krial’s company, LSP of Virginia, all charged with selling obscene material – disregards the question of whether specific DVDs purchased by undercover police in October are obscene, and instead questions the constitutionality of the Virginia obscenity law itself.

“Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” according to the motion. “This protection is broad enough to encompass a right to buy and sell obscene materials.”

Assuming this and other defense motions dismiss the case are rejected by Circuit Court Judge Thomas H. Wood – a likely scenario, according to two area law professors – the real significance of the motion is that it clears the way for an appeal on constitutional grounds if a jury brings back a guilty verdict when the case goes to trial this summer.

“If the rationale here was that the Virginia law is unconstitutional … then that’s going to have to have been argued somewhere, before any appeal takes place,” said Ann Massey, a professor of constitutional law at Washington & Lee University. “And if the judge rules against [this motion], which the judge undoubtedly will, than the appeal would have to say the judge got that ruling wrong.”

The motion cites a number of past Supreme Court cases reliant on the due process clause of the 14th Amendment, which has been interpreted to protect the right to privacy. The most recent of these, Lawrence v. Texas, was a 2003 decision to overturn a Texas law against sodomy. But the motion takes the court’s logic in that case a step further by arguing that due process protection should be extended from completely private behavior to more public activity, such as selling a DVD.

“Lawrence v. Texas does suggest that there may be new constitutional limits on the extent to which the state can regulate private sexuality, so it’s not surprising to see it used in a case like this,” said Anne Coughlin, a law professor at the University of Virginia. “But the court was very careful to say that the state remains free to regulate commercial activity.”

Louis Sirkin, the prominent First Amendment lawyer representing Embry, successfully made a similar argument in a 2005 obscenity case before a U.S. District Court in Pennsylvania, but the Department of Justice appealed the decision and it was later overturned.

“This is a game that Sirkin tries to play,” Commonwealth Attorney Ray Robertson said. “He tried to play it in the Third Circuit Court of Appeals in the case of United States v. Extreme Associates. The Third Circuit shot him down.”