Email was ‘disgusting’ but was not ‘obscene’

An angry doctor’s “disgusting” emails to his ex-wife were not “obscene” under a Virginia criminal law and his conviction for harassment by computer has been overturned by the Supreme Court of Virginia.

Where a Court of Appeals majority rejected a narrow interpretation of “obscenity” and embraced instead a broader dictionary definition, the Supreme Court insisted the narrow First Amendment-based definition must be followed. A message is not obscene unless it appeals to a “prurient interest in sex,” the high court ruled in Barson v. Commonwealth, VLW 012-6-101.

Texas neurologist Dennis B. Barson testified he became embarrassed and angry when he discovered what appeared to be an online advertisement for sex placed by his estranged wife on Craigslist. He sent a barrage of hostile emails to his wife in Virginia, accusing her of unbridled promiscuity and drug abuse.

Charged with the misdemeanor of “harassment by computer,” Barson was convicted in both general district court and circuit court. “He did it over and over and over again. It’s disgusting,” said Virginia Beach Circuit Judge Edward W. Hanson Jr.

On appeal, Barson did not challenge the finding that he sent the emails intending to harass his wife. He contended only that his language was not obscene, as required under the Virginia statute.

Barson won a 2-to-1 decision before a Court of Appeals panel, but he lost when his case was heard by the entire Court of Appeals. Even though the court had earlier used the “prurient interest” test when a client was accused of leaving an obscene voice mail message for his lawyer, the Court of Appeals found that standard too narrow in Barson’s case.

The Court of Appeals used a dictionary and decided a better definition of obscenity would include words like “disgusting,” “offensive” and “revolting.” Under that standard, Barson’s conviction should stand, the Court of Appeals held.

Writing for the Supreme Court majority, Justice Donald W. Lemons said the Court of Appeals “abruptly changed course” when it expanded the definition of obscene after eight years of using the prurient interest test. The narrow test still applies, the high court held.

“Barson’s emails to his wife, as offensive, vulgar and disgusting as their language may have been, did not meet the standard of obscenity” provided by the applicable statute, Lemons wrote.

Senior Justice Charles S. Russell, joined by Justices S. Bernard Goodwyn and LeRoy F. Millette Jr., wrote separately to argue that harassing behavior could be regulated without regard to First Amendment concerns and that a conviction under a newly announced, retroactive definition of obscenity violated Barson’s right to due process.