RICHMOND, Va. — The conviction of a retired U.S. Air Force officer who used a racial slur while speaking to a Black store clerk and Black customer was overturned Tuesday by a federal appeals court that found his speech was protected by the First Amendment under the circumstances.
Retired Air Force Lt. Col. Jules Bartow, who is white, was arrested after he used the slur while shopping for boots at the Quantico Marine Corps Exchange in November 2018. Prosecutors and witnesses at his trial said he posed several bizarre rhetorical questions, including asking the customer, while referring to the store clerk, “If I called her a (slur), would she still say good morning?”
Bartow was convicted of violating Virginia’s abusive language law.
Bartow’s conviction was overturned by a three-judge panel of the 4th U.S. Circuit Court of Appeals. The court found that the First Amendment permits criminalization of abusive language, but only if the government proves the language had a direct tendency to cause immediate acts of violence by the person to whom it was addressed.
“The ugly racial epithet used by Bartow undoubtedly constituted extremely ‘abusive language.’ But because the Government failed to prove (or even to offer evidence) that Bartow’s use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand,” Judge Diana Gribbon Motz wrote in the unanimous ruling.
The court noted that the store clerk testified that after she greeted Bartow and asked if she could help him, he responded by raising his voice and saying, “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?”
Bartow drew attention from other customers in the store, including a Black man in civilian clothes. The clerk testified that the customer explained to Bartow that employees at the exchange greeted customers with ‘sir” or “ma’am” because they are buying merchandise on a military installation. She said Bartow, who continued trying on boots, then said: “If I called her a (slur), would she still say good morning?”
A store security officer testified that when she got to the area, she observed a heated conversation between Bartow and a white lieutenant colonel who was “very animated” and pointed his finger at Bartow. The officer said she escorted Bartow out of the store and he was arrested by base security officers.
Bartow pleaded not guilty and the case went to trial before a magistrate judge. The judge concluded that Bartow “directed (the slur) at an African American man who was talking to him.” The judge found Bartow guilty and fined him $500, the maximum penalty under the Virginia law.
On appeal, a U.S. District Court judge upheld the conviction. The court did not discuss who Bartow directed the epithet at, but “seemed to rely on the apparent friction between the white lieutenant colonel and Bartow as a basis for concluding that Bartow’s use of the racial slur ‘elicited an impending breach of the peace,’ “the 4th Circuit panel said in its ruling.
The 4th Circuit noted that the U.S. Supreme Court has held that there are a few types of narrowly defined speech that can be restricted consistent with the First Amendment, including “fighting words.” But the Supreme Court has repeatedly stated that whether speech constitutes ‘fighting words’ must be analyzed on a case-by-case basis and courts must consider the circumstances surrounding such expression, the 4th Circuit wrote.
“Over the decades, the Court has repeatedly determined that the First Amendment places considerable limits on the criminalization of speech. We must abide those limits, even if that means, as it does here, that shameful speech escapes criminal sanction,” the 4th Circuit said in its ruling.
Federal Public Defender Geremy Kamens declined to comment on the ruling. The U.S. Attorney’s Office did not respond to a request for comment.
Jonathan Turley, a law professor at George Washington University, praised the ruling, “because the alternative is for courts to proceed down the slippery slope of speech that is unprotected because it is offensive to one or many groups.
“Most of us agree that what was said in the store was deeply offensive and disgraceful, but the First Amendment is designed to protect unpopular speech,” he said.
“It often means that as free speech advocates, we are forced to defend the speech of people who engage in obnoxious and deeply upsetting language.”