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 matter 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).