BerlikLaw LLC, Insulting Words

Insulting Words

In 1942, the United States Supreme Court held that the First Amendment's protection of free speech is not absolute.  Certain types of speech, it explained, may be prevented and punished because the harm they may cause substantially outweighs any value they might carry in terms of promoting the free exchange of ideas.  Virginia has embraced this concept with its "insulting words" statute, a law that prohibits statements that are so insulting and offensive that the average person, upon hearing them, would likely react with violence.

The statute is codified at Section 8.01-45 of the Virginia Code.  Despite the name of the law, it's not enough in Virginia to maintain a lawsuit against someone merely because that person uttered an insult.  Most insults are protected by the First Amendment and other laws.  To recover damages under Va. Code § 8.01-45, the insult must amount to "fighting words" - in other words, the statement must be one that tends to violence and breach of the peace.  

Extremely insulting and offensive remarks made in a face-to-face confrontation may be actionable under this statute.  Insults communicated by email or posted in an online forum are much less likely to result in liability as they usually will not present a clear and present danger of immediate violence. At least one court, however, has held that written communications alone may violate the statute, even without a face-to-face confrontation.

Insulting-words claims are generally viewed as a form of defamation.  Still, there are significant differences, the most obvious being that insulting words may be actionable when communicated directly to the plaintiff, whereas in a defamation action, the words must be communicated to a third party.  The insulting words statute is aimed at preserving order in society, whereas defamation laws are designed to protect against damage to reputation.