Face-To-Face Confrontation Not Required to Satisfy Insulting Words Statute

Insults are not usually deemed sufficiently harmful to give rise to a legal cause of action. The law expects people to have skin thick enough to withstand a certain amount of criticism and unpleasantness. There is, however, an “insulting words” statute in Virginia (Va. Code ยง 8.01-45) that prohibits insults that are so offensive that they tend to violence and breach of the peace. To state a claim for insulting words under the statute, all that is required is that the words (1) be insults and (2) “tend to violence and breach of the peace.”

“What about freedom of speech?” you might be wondering. In the seminal case of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), the Supreme Court held that the punishment of certain narrowly limited classes of speech, such as “fighting words” that tend to incite an immediate breach of the peace, would not raise a constitutional concern. The Supreme Court later clarified that fighting words could only be restricted upon the satisfaction of a rigorous “clear and present danger” test. See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (holding that “freedom of speech…is…protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”).

In applying the insulting-words statute or its equivalent enacted in other states, most courts have applied the constitutional test to require, prior to punishing or restricting the utterance of insulting or “fighting” words, a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of an immediate and violent physical response. Earlier this month, however, the Eastern District of Virginia held that the Virginia statute does not actually require a face-to-face confrontation.

Yesterday, I wrote about the case of Goulmamine v. CVS. In that case, Dr. Goulmamine was upset about certain express or implied accusations made by CVS Pharmacy in a letter it sent to him. He brought a claim against CVS for, among other things, violation of the insulting-words statute. CVS argued that Section 8.01-45 only penalizes words used in a face-to-face verbal attack and cannot apply to statements made in a written letter. Judge Payne was not persuaded that any of the state or federal case law supported such a requirement, and ultimately held glasses.jpgthat “written communications may serve as the basis of an insulting words claim, at least where the words are otherwise insulting and tend to violence.”

Dr. Goulmamine didn’t quote much of the exact language he claimed to be insulting, but the gist of the statements were that they accused Dr. Goulmamine of writing pain-pill prescriptions for drug addicts. (Note: As with defamation claims, insulting-words claims must state the insulting language in haec verba in federal as well as state court, but the court didn’t dismiss on this basis because there were four direct quotations in the complaint, and CVS produced a letter it claimed was the letter described in the complaint).

The court noted that whether the words are sufficiently “insulting” is supposed to be a question of fact for the jury, but it held that a court may decide the matter if it finds as a matter of law that no reasonable jury could find the words insulting. (In other words, the court found it should exercise a gatekeeping function similar to that required in defamation cases, as outlined in Webb v. Virginian-Pilot Media Companies, LLC.) The court also noted that “statements that are defamatory per se are insulting per se,” and that a statement deemed to be defamatory per se will automatically meet the “insulting” requirement of the insulting-words statute. Because the letter allegedly suggested that Goulmamine was aiding and abetting narcotics possession–a crime of moral turpitude and therefore defamatory per se if false–the court found the alleged statements sufficiently insulting.

The court then turned to the issue of whether the statements had a tendency to incite violence (i.e., whether they presented a “clear and present danger of a violent physical reaction”). Here is where the claim failed. The letter submitted by CVS was written in a “muted and respectful tone.” As such, the court found, it could not reasonably be construed as tending to provoke violence or breach of the peace. And the court reached the same conclusion with respect to the quotations from the letter in the complaint (such as “wrote too many pain pill” and “red flags”); namely, that no reasonable jury could conclude the statements posed a clear and present danger of inciting violence.

The court dismissed the insulting-words claim without prejudice, granting leave to re-file if Dr. Goulmamine’s claim was based on language other than that contained in the letter produced by CVS and if that language tended to incite violence or breach of the peace.

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