A retired Air Force officer’s use of a racial slur toward a Black store clerk did not fall within the “fighting words” exception to free speech protection, the Fourth Circuit ruled Tuesday.
A U.S. magistrate judge found Lt. Col. Jules Bartow guilty under Virginia’s abusive language statute in a case stemming from a series of rhetorical questions — that included a racial slur — Bartow posed to a store clerk in 2018.
Cathy Johnson-Felder, a Black sales associate at the Marine Corps Exchange store in Quantico, Virginia, testified that she was involved in a heated exchange with Bartow while he tried on boots. The exchange started off badly, with Johnson-Felder wishing Bartow a good morning.
“If I had indigestion, diarrhea, or a headache, would you still address me as good morning?” Bartow said in a raised voice to Johnson-Felder, who froze in shock, according to the opinion written by U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee.
Johnson-Felder then asked Bartow, “Can I help you, sir,” to which he replied: “I’m not a sir — I’m not a male, I’m not a female, if I had a vagina, would you still call me sir?” According to the opinion, Bartow gestured and pointed his finger several times at Johnson-Felder, who was a number of steps away from him. She testified she was “taken aback.”
The interaction continued to devolve when a Black man in civilian clothing stepped in to explain that Johnson-Felder’s use of “sir” is was to be expected when purchasing merchandise on a military installation.
“If I called her a nigger, would she still say good morning?” Bartow responded, according to Johnson-Felder’s testimony. That led to Bartow’s removal from the store by security personnel, who arrested him.
After Bartow pleaded not guilty to violating the Virginia speech statute, a magistrate judge concluded he had directed the slur toward the Black man in civilian clothing and fined Bartow $500. Bartow appealed the conviction to the Fourth Circuit.
During oral arguments this past December, U.S. Circuit Judge Stephanie Thacker — a Barack Obama appointee — said “the presence of the n-word is what makes this case complicated.” But in the end, the panel found that while ugly and racist, the epithet did not rise to the level of “fighting words” under the statute.
“The ugly racial epithet used by Bartow undoubtedly constituted extremely ‘abusive language’” U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, wrote in a 14-page opinion issued Tuesday.
But Motz noted the government failed to prove or offer evidence “that Bartow’s use of this highly offensive slur tended to cause immediate acts of violence by anyone.”
The First Amendment allows criminalization of abusive language, Motz said, but only if the government proves that the language had a “direct tendency to cause immediate acts of violence by the person to whom, individually, it was addressed.”
Furthermore, Motz noted the magistrate “did not make any findings as to whether the African American man was in fact likely spurred to immediate violence or as to the likelihood of such a response from an individual in the man’s position.”
Accordingly, the panel reversed the magistrate’s judgment and remanded the case for vacatur of the former officer’s conviction and sentence.
Bartow’s attorney, Rick Redmond with the Washington firm Cleary Gottlieb, told the panel during oral arguments Bartow’s “mode of expression was rhetorical questioning and therefore constituted protected speech and not ‘fighting words.’”
The government provided a store security camera video that lacked audio, and the testimony of two store workers as evidence.
“Because the video lacks audio and individuals move in and out of the frame, it is not possible to determine from the video when Bartow was talking or to whom he was looking when he did speak,” Motz wrote, though she noted the video did not appear to show Bartow taking any aggressive action toward the clerk or customer.
Thacker and U.S. Circuit Judge A. Marvin Quattlebaum Jr., a Donald Trump appointee, joined Motz’s opinion.
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