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Under Va. Code § 8.01-45, words must tend to violence and breach of the peace to qualify as actionable insulting words.
Following an acquittal of criminal charges, Mr. Thomas Hutchins sued Mr. David Cecil and Mrs. Kelli Cecil for malicious prosecution. The Cecils counterclaimed against Hutchins. Count I of the Counterclaim, titled "Insulting Words Directed at Kelli A. Cecil," alleged Hutchins called Mrs. Cecil a "***" in public. Mrs. Cecil claimed the words were insulting, tended to violence and breaches of the peace, and she was insulted, offended, and frightened. Count I prayed for $ 25,000.00 in compensatory and $ 25,000.00 in punitive damages. Count II of the Counterclaim, titled "Insulting Words Directed at David B. Cecil," alleged Mr. Hutchins called Mr. Cecil a "***" in public. Mr. Cecil claimed the words were insulting, tended to violence and breaches of the peace, and he was insulted, offended, and frightened. Count II prayed for $ 25,000.00 in compensatory and $ 25,000.00 in punitive damages. Hutchins demurred to Counts I and II of the Counterclaim and to the prayer for punitive damages. Hutchins claimed that a cause of action under Va. Code § 8.01-45 was completely assimilated into common law libel or slander. Hutchins argued that defamatory causes for action require a false statement, and the words "***" and "***" were incapable of being a false statement of fact; therefore, calling Mrs. Cecil a "***" did not convey the false representation that she was a female dog, nor did calling Mr. Cecil a "***" convey the false representation that he engaged in incest. Hutchins also claimed that the terms complained of here were not actionable as defamation per se because they do not impute the Cecils committed a criminal offense involving moral turpitude or that they are infected with a contagious disease or that they are unfit at work, nor did the words prejudice them in their profession or trade. Hutchins argued the Cecils' failure to plead special damages precludes them for proceeding with Count I and Count II as a matter of law. Finally, Hutchins asserted that the Cecils have failed to specifically plead facts in support of punitive damages. The Cecils asserted that they have sufficiently pleaded a cause of action by stating the precise words spoken and alleging the epithets were insulting and tended to violence and breach of the peace. Additionally, the Cecils argued that these words do have defamatory meaning; they claimed the usual construction of "***" is a spiteful or sexually promiscuous women, and "***" is commonly known to mean an individual who would engage in incest. The Cecils also asserted that they have pleaded special damages. Regarding punitive damages, the Cecils claimed Hutchins' behavior of cursing at them in public showed willful or wanton conduct or such recklessness as evinces a conscious disregard for the safety of others, thereby sufficiently setting forth their entitlement to punitive damages.
Did the Cecils sufficiently plead a cause of action under the statute prohibiting "insulting words”?
The court held that § 8.01-45 afforded an independent cause of action to redress true "fighting words" which tended to provoke violence and breach of the peace, as distinguished from words that were merely defamatory. The court held that such actions were not assimilated to actions for libel or slander. The court found that § 8.01-45 was not limited to false representations of fact but also encompassed an action for fighting words. The court found that the Cecils did not sufficiently plead a cause of action under § 8.01-45; but granted them leave to amend their motion.