THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, March 10, 1996 TAG: 9603080100
SECTION: DAILY BREAK PAGE: E5 EDITION: FINAL
SOURCE: BY ANN G. SJOERDSMA
LENGTH: Medium: 79 lines
YOU TAKE your wife to a Virginia Beach restaurant for your anniversary. The atmosphere is casual but stylish. You have a reservation. But you are not seated immediately. The maitre d' takes another couple without a reservation ahead of you.
You notice. It's a nice table.
Your turn. You are directed to the smoking section. There are no tables available in the non-smoking section, your preference, had you been asked, which you weren't. The table is in a noisy, busy area.
You complain to the waitress and request a change. A half-hour later, you are moved.
By now you and your wife have lost that romantic feeling.
Having spoken to the owner-manager during dinner, and been treated curtly, you seek him out as you leave. Your wife would like an apology. You take him aside. He is less than sympathetic. The conversation becomes hostile, but not loud. You tell your wife, ``This guy's an arrogant son of a bitch,'' and leave, vowing never to return.
It happens. Just a bad night. Best just to forget it.
But three weeks later you receive a summons, ordering you to appear in court on a misdemeanor charge of ``abusive language to another,'' Va. statute 18.2-416. The restaurant owner has taken out a complaint. You're stunned. You regret the ``SOB'' slip, but is this really a matter for the criminal courts?
Trial day. Your lawyer is a friend. No fee. A dismissal seems likely. There were no threats, no injuries. How can someone be punished for saying ``son of a bitch''? Surely the judge will see through the vindictiveness. Isn't there a First Amendment?
The restaurant owner lies on the witness stand, exaggerating the confrontation. His waitresses contradict him. So do you and your wife. But the judge doesn't care about misunderstandings. Just the letter of the law. You are found guilty and ordered to pay $300. On appeal, the fine is reduced to $50.
``Son of a bitch'' has earned you a criminal record.
Damn.
Incredible as it may seem, in today's profanity-ridden world, abusive or ``insulting'' language can land you in legal trouble, as my friend Tom discovered. Even words that seem tame compared to the ``MF'' talk that litters streets and movies. Even when no one is hurt.
Why? Because of the ``fighting words'' doctrine, an exception to ``free speech.'' Tom didn't know there are laws against uttering words that tend to provoke a physical retaliation. You probably don't either. What happened to Tom could happen to you. But should it?
Do you want hot-headed people tying up court time with personal vendettas? It's your money, your community, your justice.
Va. section 18.2-416 prohibits cursing or using ``violent abusive language'' to another person ``under circumstances reasonably calculated to provoke a breach of the peace.'' The context is key.
State courts have said this means ``personal, face-to-face, abusive language that is likely to provoke a violent reaction.'' For the law to be constitutionally applied, the words must have a ``direct tendency'' to cause violence. To inspire a fast fist in the face. Real visceral stuff.
You can't be convicted for just being angry or resentful or vulgar. Courts have let ``f--- you'' fly. An abusive epithet such as ``MF'' is less likely to. But ``son of a bitch''?
Both judges, at trial and on appeal, condemned Tom's words and ignored the situation. Southern white men in their 60s - like the restaurant owner - they punished the cursing, without considering provocation.
Or perhaps they punished the white yuppie upstart with the New York accent. The restaurateur is a well-known Virginia Beach businessman and a frequent courthouse visitor.
But the bottom line is judges shouldn't be intervening in everyday arguments that heat up quickly and cool off without any harm being done. Whenever possible, disputes should be settled by the disputants and kept out of court. When they do land in court, people with clean records who make a small mistake should be given a break.
Justice should serve common sense, just as restaurants should serve patrons. Whenever they don't, you always pay. MEMO: Ann G. Sjoerdsma is a lawyer and book editor of The Virginian-Pilot. by CNB