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).
Like defamation claims, alleged violations of the insulting-words statute must be measured by standards that satisfy the First Amendment and its protection of the freedom of speech. Constitutional limitations applicable to defamation claims apply with equal force to insulting-words claims. In essence, the First Amendment applies any time a plaintiff seeks damages for reputational, mental, or emotional injury allegedly resulting from a defendant’s speech.
Not every harsh insult is going to be actionable. To satisfy the Constitution, Virginia courts can generally only apply the insulting-words statute to situations involving a clear and present danger of imminent harm. Most courts therefore require 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. Insults communicated over the phone, or made in an online forum, or sent via email, will usually not be sufficient.
A review of Virginia Supreme Court decisions interpreting the insulting-words statute demonstrates that the only language it has found sufficient to “tend to violence and breach of the peace” is language falsely accusing someone of the commission of a crime involving moral turpitude. Absent such false allegations, Virginia courts expect most people in modern society to be able to deal with being called most other four-letter words without resorting to dueling (or other violence) as a part of everyday life.