RICHMOND — Dang it! Shoot! Jeepers creepers!
Virginia law demands that residents keep it clean, even in moments crying out for the foulest four-letter words. It’s illegal in this state to curse in public.
“Profane swearing” is a Class 4 misdemeanor punishable by a $250 fine, right up there with public intoxication. It’s a law that predates the Civil War. Yet modern-day potty-mouths still get charged under it — in small numbers, but in ways that can raise troubling questions about law enforcement.
But a state lawmaker from a county that sounds a lot like a curse word is trying hard to get rid of the law.
Del. Michael J. Webert (R-Fauquier) is a cattle farmer who knows that stuff happens. And that when it does, only a few choice words will do.
“When you’re working [with] cows and a 1,400-pound animal doesn’t do what you want it to, or steps on your feet, every once in a while something colorful comes out of your mouth,” said Webert, 38.
A conservative on most issues, Webert says his goal is to protect free speech and shrink a bloated state code by removing a law already deemed unconstitutional decades ago under Virginia Court of Appeals and U.S. Supreme Court rulings.
“When I cursed, my mother told me not to and handed me a bar of soap,” he said. “You shouldn’t get hit with a Class 4 misdemeanor.”
Repeal is by no means assured, even in a Capitol designed by free-speech champion Thomas Jefferson. Webert has carried the same bill for the past two sessions. Both times, it died in committee. It might have better chances when the General Assembly convenes next month, with lots of new, more-liberal delegates who were elected in November.
While it might make sense to scrap an unconstitutional law, legislators who vote for repeal could stand accused of promoting profanity. And that has made many wary of discussing Webert’s bill. The rare exception was Del. David B. Albo (R-Fairfax), who steps down in January and served on the House committee that torpedoed Webert’s previous attempts.
“We’ve had conversations about this type of thing over the years. There are a few statutes on the books that have been ruled unconstitutional,” Albo said, noting that state law still prohibits flag burning decades after the Supreme Court struck down such bans.
“Your opponent is not going to say, ‘Dave Albo voted to let people burn American flags, but to be fair, it’s unconstitutional.’ They’re not going to explain the whole thing,” Albo said. “For most people, it’s not worth it.”
There are reasons beyond political self-preservation for hanging on to the law.
Daniel Post Senning is the great-great grandson of the late Emily Post, whose musings about etiquette set the tone for polite society in a more formal era.
Senning, who carries on the family business through the Emily Post Institute, thinks there’s something to be said for keeping a lid on blue language.
“You want some sort of public standards for decorum,” said Senning, who has conducted etiquette seminars on the subject of profanity in the workplace. “We are definitely advocates for awareness and consideration.”
But academics who do scholarly research on swearing — really, they exist — say such bans are futile. It aims to “enforce politeness, and that’s not something that the law is equipped to do,” said Jesse Sheidlower, a lexicographer, Columbia University professor and author of “The F-Word,” a scholarly history of the word.
Jonathan Hunt, a University of San Francisco language professor who has researched cussing, said what’s considered profane is always changing. In a more religious era, blasphemy was considered the biggest taboo. In secular times, it was “anything having to do with bodily functions.” And today, racist or sexist slurs.
“There’s always some taboo in language, some perception that those words have a strange and magical power, often a power to harm,” he said. “And it moves around.”
It is not clear how many people get charged under Virginia’s law each year. Statewide figures are hard to come by since the statute covers swearing and public intoxication, and a breakdown for swearing alone was not immediately available.
The numbers appear to be small based on arrests in Arlington County, which has a local ordinance modeled on the state law.
In a county of 230,000 residents, police charged a mere three people with cursing over the past two years.
That is not to say the law is all but forgotten. The Arlington County Board voted in 2015 to increase the $100 local fine to match the state penalty. Virginia Beach, which also has a local ordinance, has signs on its boardwalk saying swearing is banned, an effort to enhance the family-friendly atmosphere.
Fairfax County drew attention to its own swearing ban in late October, when police took a reporter from a liberal media outlet to the ground following an expletive-laced argument captured on video.
“If you curse again, you will go to jail,” an officer says at one point.
The reporter’s reply — “F--- this!” — triggers an aggressive arrest, though in the end he was charged with disorderly conduct and avoiding arrest.
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union’s Virginia affiliate, said it is “well settled law that generalized prohibitions on profanity in public are a violation of the First Amendment.”
“This is an interesting issue, in part because (even though they are supposed to issue a summons for misdemeanors) police often use this statute or a related local ordinance as an excuse to arrest someone, or at least stop them, and then do a search incident to arrest so they can arrest the person on another charge,” Gastañaga said in an email.
Virginia’s aversion to profanity goes back to the nation’s infancy, as native son George Washington famously ordered his troops to quit swearing in August 1776.
State law has prohibited public swearing at least since 1860. The fine then: $1 per offense.