Barson v. Com.
726 S.E.2d 292
Va.2012Background
- Barson was convicted of harassment by computer under Code § 18.2-152.7:1 for sending emails to his estranged wife and her circle in 2009.
- Emails included explicit sexual and demeaning language intended to embarrass and harass, not to argue a legal claim.
- Barson admitted anger and embarrassment as motives and that he intended to harass; he did not dispute the harassment element.
- Virginia Beach JDR court convicted; circuit court bench trial affirmed a $250 fine; Court of Appeals reversed then en banc upheld conviction under a broader obscenity standard.
- Virginia Supreme Court granted Barson’s appeal to determine which obscenity definition applies and whether retroactive application violated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of obscenity for § 18.2-152.7:1 | Barson: Allman Miller-based definition governs (obscene content under 18.2-372) | Commonwealth: Allman overruled; dictionary-based plain-meaning is appropriate | 18.2-372 definition controls; Allman-based obscenity not required |
| Due process and retroactive application | Retroactive broadening of obscenity criminalizes prior conduct | Allman not binding precedent; en banc decision valid | Retroactive broadened standard violated due process; conviction reversed on due process grounds |
Key Cases Cited
- Allman v. Commonwealth, 43 Va.App. 104 (2004) (held Miller-based obscenity applied to obscene telephone calls (18.2-427))
- Lofgren v. Commonwealth, 55 Va.App. 116 (2009) (words with sexual connotations used to express anger may not be obscene)
- Perkins v. Commonwealth, 12 Va.App. 7 (1991) (construed obscenity narrowly to limit protected speech)
- Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975) (overbreadth concerns in obscene telephone statute)
- Bouie v. City of Columbia, 378 U.S. 347 (1964) (unforeseeable judicial enlargement of statute violates due process)