Potter Stewart famously remarked about obscenity, “I know it when I see it.” The justices of the Supreme Court of Virginia, however, were conspicuously quiet today when they had the chance to explore the definition of “obscene.”
In Barson v. Commonwealth, No. 111406, only Justice William C. Mims and Senior Justice Charles S. Russell engaged the advocates, asking a total of 10 questions in a case involving a husband’s emails to his estranged wife. Over 16 days, Dr. Dennis B. Barson sent his wife 87 emails, colorfully accusing her of drug use and sexual promiscuity. Initially, the Court of Appeals overturned Barson’s conviction for sending harassing and obscene emails, applying the state equivalent of a test for “appeal to the prurient interest.” The en banc court upheld the conviction, applying a broader definition of “obscenity” that encompasses anything offensive to the senses.
Mims asked Virginia Beach lawyer Samuel R. Brown, who appeared for Barson, whether Barson meant to communicate with or to harass his wife. Mims wondered whether, after 87 emails, “he know[s] his wife will not communicate back to him?” Mims may have been trying to steer the high court toward distinguishing harassing speech from communications protected by the First Amendment. But Brown tried to draw the court back to the standard of “an appeal to the prurient interest,” that defined “obscenity” before Barson’s allegedly obscene conduct.
Arguing for the commonwealth, John W. Blanton explained how Barson’s conduct was obscene under either the “prurient interest” standard or the broader standard used by the en banc Court of Appeals, which Blanton dubbed the “Barson” standard. Applying the doctor’s name to the standard, whose legitimacy the court was actively reviewing, may have provoked Russell to raise the due process concerns that Barson asserted in his brief. Wrapping up his principal argument in just under three minutes and heading toward his seat, Blanton faced a series of “not-so-fast” questions from the senior justice about retroactive application of the broader standard.
Either playing devil’s advocate or tipping his hand, Russell asked Blanton if his argument should fail on due process grounds because the published law at the time of the allegedly obscene conduct created a “prurient interest” standard. Blanton replied that, because the Court of Appeals was not the court with the last word on the matter, and a court should remain free to interpret the words in a statute, Barson’s due process rights were not violated. Taking his cue from that line of questioning, Brown’s rebuttal argued the court should not find Barson guilty under the broad “Barson” standard, even if it chooses to apply the broader definition of “obscene” going forward.
In addition to Mims and Russell, Chief Justice Cynthia D. Kinser and Justices S. Bernard Goodwyn, Donald W. Lemons, LeRoy F. Millette Jr. and Senior Justice Harry L. Carrico heard the case. A decision is expected by the next court session in April.
—Guest post by University of Richmond law students Clayton LaForge & James Barr.