Another federal judge faced with interpreting Virginia’s insulting-words statute has found that (1) a face-to-face confrontation is not required, and (2) if the words at issue are defamatory per se, then they automatically satisfy the requirements of the statute. The case is Christen Waddle v. Aundrea Claughton, currently pending in the Danville Division of the Western District of Virginia.
The facts of the case (as alleged in the complaint and recited in an earlier opinion) are essentially as follows. Ms. Waddle was driving down the street minding her own business, when she encountered an emaciated dog (not the one pictured) running loose in the middle of the road. The dog appeared to be in bad shape. It had scratches on its face and its ribs were visible. Feeling sorry for the dog, she decided to scoop it up and take it to Animal Control. She called the number on the dog’s collar but no one answered. She then found the owner’s Facebook page and contacted him through Facebook, letting him know she was taking the dog to Animal Control.
As she was stopped for gas on the way to Animal Control, a pickup truck pulled up and five men got out and surrounded her car. They demanded she turn over the dog and threatened to break her windows if she did not comply. An Animal Control officer (Mr. Claughton) showed up, declared the dog to be “starved and underweight,” and took the dog to Animal Control. There, the dog was inspected, and delivered to its owner a short time later along with a “cruelty warning.” When Ms. Waddle found out the dog was returned to its owner, she became angry. She told Claughton she would report him to the “highest possible authority” for his
“dereliction of duty.”
Needless to say, the Animal Control officer did not appreciate that. He summoned the dog’s owner back, along with one of the other men from the truck, and asked them to prepare written statements regarding the incident. They did so, but in a manner that made it appear Ms. Waddle had attempted to steal their dog. The statements said nothing about the fact Ms. Waddle was taking the dog to Animal Control out of concern for its welfare. Armed with those statements, Mr. Claughton sought arrest warrants from the magistrate. Ms. Waddle was charged with felony larceny.
The charges were eventually dismissed for lack of criminal intent. The day the charges were dismissed, Mr. Claughton’s supervisor, Todd Moser, allegedly said the following to a reporter: “When [Ms. Waddle] refused to give the dog back to the owner, when the owner confronted her on the way to take the dog to Animal Control, that constituted theft.” On the basis of that statement, Ms. Waddle sued for both defamation and insulting words.
The insulting-words statute is designed to punish offensive language that is so inflammatory as to amount to “fighting words,” which the United States Supreme Court has held to be outside the protection of the First Amendment. (See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). Fighting words are those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Over the years, many court decisions have found that statutes criminalizing such conduct do not violate the First Amendment provided they are limited to verbal attacks directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of violent physical reaction. (See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971)).
Recently, however, there have been a couple of federal decisions in which courts have found face-to-face confrontation unnecessary. A few years ago there was Goulmamine v. CVS, and now there is this case, Waddle v. Claughton. In bringing a claim under the insulting-words statute, “there is no requirement that the words must be verbalized in a face-to-face confrontation,” the court wrote. The court reasoned that actions for insulting words are essentially actions for defamation, the only difference being that no publication is necessary in an action for insulting words. Therefore, if the statement at issue is defamatory per se, it is insulting per se, and thus satisfies the statute with no further showing. Here, the statement was that Ms. Waddle committed theft, a crime of moral turpitude. If that was false, the court found, then the words were sufficiently insulting to maintain a claim under the insulting-words statute, despite the fact that Ms. Waddle was not present when the statements were made.
Curiously, there was no discussion of the Virginia Supreme Court case of Allen & Rocks, Inc. v. Dowell, in which the court held that the insulting-words statute still requires a showing of words that actually tend to violence or breach of the peace, even when the words are per se defamatory. The court did note, however, that there is precedent for the proposition that false accusations of a crime do tend to violence and breach of the peace.