It’s the Law, Dammit

Swearing in public is still illegal in Virginia.

Illustration by Michael Witte

Virginia State Del. Michael Webert recently had to drive 46 miles from his home in Marshall to a meeting in Washington, D.C. He knew traffic would be bad, so he left early, but still arrived just moments before the event. It took him three hours and 24 minutes of lurching down the ever-gridlocked Interstate 66 to reach his destination.

Webert estimates he blurted a profanity every five seconds during that trip, which, if my math is correct, could have cost him $432,000 under Virginia state law had nearby drivers or the police heard him.

“I’m a farmer. I work cattle, so maybe my mouth isn’t as clean as it should be,” Webert confesses. “I’m not a big fan of heavy traffic, so it can set me off a bit.”

His hypothetical fine would stem from a vague, antiquated Virginia law dating back to before the Civil War and amended several times since, that makes it a Class 4 misdemeanor if someone “profanely curses or swears” in public. 

The law gives no explanation of the exact words one would have to say to be fined $250, nor exactly how few or how many of the words must be said. It also omits whether one may be charged for each profanity—à la carte—or if it’s just a one-time, all-you-can-swear buffet price.

Webert, acting on his belief that the law is @#!%in’ silly, has introduced a bill that would strike the phrase “profanely curses or swears” from a line in the state statute (that deals mostly with public intoxication) beginning, “If any person profanely curses or swears or is intoxicated in public … .” Under Webert’s proposal, the law would simply state, “Any person who is intoxicated in public .… is guilty of a Class 4 misdemeanor.” Simple. Right?

Not at all. Webert has introduced the bill three times in the past three years. Each time, the bill has died in committee. “I originally thought this would be an easy one,” he says. “Oh boy!”

Webert, a Republican from the county of Fauquier (which, though it sounds like one, is not a profanity), says he has been met with stiff opposition, most notably from his good friend Jackson Miller, a fellow House Republican and former representative of the 50th district.

Most important to Webert’s argument, he explains, is that “it could violate our First Amendment rights to free speech.” Although such a case has not arisen in the state, it is not hard to imagine a passionate public speaker being charged by law enforcement officials who disagreed with his opinion.

Also, a judge’s decision in a free speech case in Virginia Beach in 1989, Webert says, “already struck down a local law that pretty much parallels this law.” What if a suit arose from a challenge to the law’s constitutionality? Wouldn’t that waste the time and money of our stressed justice system? 

Plus, Webert says the law is an example of big government and government overreach. And, finally, going back to that theoretical $432,000 fine: “When I introduced it, I said, ‘Look, if I’m walking down the street and I stub my toe and I accidentally blurt out something, I don’t think that deserves a fine,’” says Webert. Miller objected: “He gave some examples of profanities and basically said, ‘So you’re all for saying the f-word?’” says Webert. It was all good natured Webert assures, “But it did end up with me dropping it.”

Then again. And again.

But don’t give up hope, potty mouths and free speech advocates. Webert is trying once more this year. He has already submitted the same bill (now HB31), and he’s still hopeful, knowing that, post-election, committees will be made up of a new mix of delegates, many of whom might be Democrats willing to work across the aisle on a bill with clear bi-partisan appeal.

Great to hear, I tell him. I too have accidentally dropped a saucy word (or 50) from time to time. Considering my own language during bad traffic, I don’t think it would be fair to have my house seized by the Commonwealth of Virginia for unpaid cursing fines. 

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