Articles Posted in Fighting Words

When local politicians sue media defendants over false and defamatory stories related to their official conduct, they need to show that the article in question was published with actual malice. That means that it’s not enough to show negligent reporting or that some of the facts in the article are untrue; a successful public official bringing a defamation claim against a newspaper must show that the paper either knew the facts were wrong or that they were most likely wrong, and proceeded to publish them anyway.

In Hanover County, Virginia, Supervisor Sean M. Davis is taking a crack at the publisher of Style Weekly and its reporter, Peter Galuszka, over an article written last December that questioned whether Mr. Davis was exerting improper influence on a local high school’s curriculum. After noting that several books and movies had been banned from Hanover High School, the article described “some students, former teachers and parents” as saying that Supervisor Davis had “personally intervened to have teachers suspended or face other disciplinary actions if they present ideas or images that Davis considers too liberal.” In truth, claims his lawsuit, Davis “had absolutely nothing to do with the suspension or firing of any teacher or the banning of any book.” His challenge is going to be in proving that the reporter republished the accusations against him with knowledge that they were untrue, or at least with a high degree of awareness that the accusations were probably untrue.

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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 § 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”).
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Travel agent John Mathews may have a meritorious claim against a Virginia hotel for breaching a contract to provide food for a large group of tourists. It’s hard to tell, though, when he clutters his complaint with counts for defamation, invasion of privacy, tortious interference, and intentional infliction of emotional distress, and fails to include a count for breach of contract. This latest complaint represents Mr. Mathews’ fourth attempt to present his case to a federal court in Pennsylvania. Had he opted to file a simple breach-of-contract action in Virginia’s general district court instead, he might have secured a judgment by now.

The allegations go as follows. Mr. Mathews booked a “Winter Get Away Tour” with the Westin hotel at Washington Dulles in 2012. He alleges he planned the event with the hotel sales manager and estimated there would be 150 guests with the tour. He claims he emphasized that this was only an estimate and he would furnish a final number later.

When 174 people signed up for the getaway (or rather, the “get away”), the hotel was not able to feed everyone, as the head chef apparently wasn’t notified of the final number. On both Saturday and Sunday nights, some guests went without meals and an unlimited, all-you-can-eat buffet was converted to a limited, one-serving one. Mathews had advertised the tour to include two buffet dinners and two buffet breakfasts and claims he had to reimburse many guests due to the missed or reduced meals.

Freedom of speech is not without limitations. Under the “fighting words” exception, speech is unprotected if it tends to incite an immediate breach of the peace (i.e., it is inherently likely to provoke a violent reaction). Virginia is one of few states that has essentially codified the fighting words doctrine. Its “insulting words” statute is found at Section 8.01-45 of the Virginia Code.

The insulting words statute was first passed as part of the 1810 Anti-Dueling Act. The Anti-Dueling Act provided that “All words which, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, shall be actionable.” Today, over 200 years later, the language of the statute is virtually unchanged. Times have changed, but Virginia law still prohibits the utterance of words that are so insulting and offensive that the average person, upon hearing them, is likely to react with violence. Insulting-words jurisprudence has evolved over the years as a form of defamation law.

To recover in a private lawsuit brought under § 8.01-45, the words used must not only be insults, but they must be fighting words that “tend to violence and breach of the peace.” The United States Supreme Court has defined fighting words as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a duel.jpgmatter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15, 20 (1971). The Supreme Court later expanded the definition by clarifying that provocation of “immediate” or “imminent” violence was required before mere insults could fall outside the protection of the First Amendment. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982).

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