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Man Fined $250 for Cursing Out Virginia Attorney General in Voicemail

Anyone who has ever dealt with difficult phone representatives knows in a phone call the first one to swear “loses.” When dealing with duplicitous sales people in search of a refund or customer service folks who only serve to stonewall complaints as soon as you drop a curse word they can hang up on you. Little did anyone realize that they are actually being kind and not prosecuting you for breaking the law.

James Berry of Yorktown, Virginia was fined $250 for a profanity-laden voicemail he left for Attorney General Mark Herring. While the flurry of expletives may have put whoever listened to the message in a bad mood, it was his closing line that got the call referred to Capitol Police. “Bye. And I hope you die, but I won’t be the one to kill you.” While Berry was apparently calling to protest support of a same-sex marriage, he also twice suggested marijuana should be legalized.

The phrasing of the last line makes it pretty clear that the statement is not a direct threat. In fact, what Berry was charged with what is a little-known part of the Virginia state code that makes it illegal to use profanity over “public airways or by other methods.” In court he pled down to a lesser charge known as “curse and abuse.”

The Hampton Roads Daily Press reached out the local ACLU for comment, and they challenged the application of that law. They point out that profanity was determined protected speech by the Supreme Court, so “merely using certain words may not be prosecuted as a crime.” They also said that curse and abuse  “may only be applied to ‘fighting words,’ that is words that tend to provoke a violent response in a face-to-face confrontation. It is difficult to imagine how a telephone call could ever meet this definition….”

While Berry may be a homophobic crank, simply being annoyed or offended by what he says does not make it criminal.

Posed Photo By Saddboy (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons

About the author

Joshua M. Patton is a father, veteran, and writer living in Pittsburgh, PA. Along with news and current events, he writes about parenting, art, and personal stories. His serial fiction story "The Prophet Hustle" is available at JukePop.com and a forthcoming independent ebook about the cam-modeling industry "Dirty Little Windows" will be available later this summer.