The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Rep. Devin Nunes Suing Tweeters for "Insulting Words," Claiming the Insults Caused $250M of Damage to Him

This is besides the libel claims he is bringing against them; highly insulting Tweets, he argues, are "fighting words" and thus punishable under Virginia law.


This is from the Complaint in Nunes v. Twitter:

Defendants' insulting words, in the context and under the circumstances in which they were written and tweeted, tend to violence and breach of the peace. Like any reasonable person, Nunes was humiliated, disgusted, angered and provoked by the Defendants' insulting words.

Defendants' words are fighting words, which are actionable under § 8.01-45 of the Virginia Code (1950), as amended.

As a direct result of Defendants' insulting words, Nunes suffered actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $250,000,000 or such greater amount as is determined by the Jury.

Nunes is suing in Virginia, and it appears that some of the defendants may have been posting from Virginia; and Virginia law does provide—using language quite close to the First Amendment definition of the "fighting words" exception—

All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

But Tweets sent across vast distances won't qualify under either the statute or the exception, precisely because the distance between speaker and subject precludes their creating immediate violence and breach of the peace (see, e.g., State v. Drahota (Neb. 2010)); and the fighting words precedents make clear that such insults can be stripped of First Amendment protection only if they indeed tend to provoke immediate physical retaliation.

Now some Virginia cases seem to take the view that the "insulting words" statute bans only statements that are both libelous and at the same time fighting words; if so, then the "insulting words" claim would be redundant of Nunes's libel claim. Others (e.g., Hutchins v. Cecil, 44 Va. Cir. 380 (1998)) seem to read the statute, according to its text, as covering fighting words generally—and Nunes's complaint takes that view. But in either case, Tweets won't qualify (except in highly unusual cases where people send Tweets insulting someone who happens to be in the same physical place as they are).