Crawford v. UNITED STEELWORKERS, AFL-CIO , 230 Va. 217 ( 1985 )

COCHRAN, J.,

concurring.

I reach the same result as the majority solely by application of Virginia law. We have long held that an action for insulting words under Code § 8.01-45 and its predecessors is treated in all respects as a common-law action for slander or libel, with the exception that no publication is required in an action for insulting words.

The trial of an action for insulting words is completely assimilated to the common law action for libel or slander, and from the standpoint of the Virginia law it is an action for libel or slander.

Carwile v. Richmond Newspapers, 196 Va. 1, 6, 82 S.E.2d 588, 591 (1954); see also Shupe v. Rose’s Stores, 213 Va. 374, 375, 192 S.E.2d 766, 767 (1972); M. Rosenberg & Sons v. Craft, 182 Va. 512, 528, 29 S.E.2d 375, 382-83 (1944); W. T. Grant Co. v. Owens, 149 Va. 906, 913-14, 141 S.E. 860, 863 (1928). The statute itself is now a useless appendage to the common law, an obsolete vestige of the proclivity for duelling which initially prompted the legislature to enact the law rewarding the victim for enduring an insult and penalizing the offender for the criminal act of provoking a breach of the peace. See Note, The Actionable Words Statute in Virginia, 27 Va. L. Rev. 405, 414 (1941).

Only false utterances are actionable under the common law of defamation. See Rosenberg, 182 Va. at 518, 29 S.E.2d at 378 (five classes of defamatory language). Accordingly, an action under the insulting words statute can be maintained only on the basis of a false statement. An epithet, however repulsive or intemperate, used to convey the speaker’s contempt for another, is not defamatory when it cannot reasonably be understood to convey its literal meaning. When uttered in this context, such an expression is not a representation of fact, the truth or falsity of which is capable of proof.

Although use of the two offensive words upon which the judgments in the present cases were based may have tended to violence and breach of the peace, as the trial court held, they are not actionable under the insulting words statute because, in the context in which they were spoken, they are incapable of defamatory meaning. Therefore, the question whether such an action would be preempted by the federal labor laws is moot.