Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer’s use of N-word – ABA Journal

First Amendment

By Debra Cassens Weiss

May 12, 2021, 10:33 am CDT

Image from Shutterstock.

A federal appeals court has reversed the conviction of a white retired Air Force lieutenant colonel who used the N-word while complaining about a Black store employee who asked whether he needed any help.

If I called her a n- - - -r, would she still say good morning? the retired officer had said.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday that Jules A. Bartows speech was protected by the First Amendment, and he could not be convicted for using abusive language.

The First Amendment allows a conviction only when language has a direct tendency to cause immediate acts of violence by the person to whom it was addressed, the appeals court said. Under the facts of the case, that fighting words exception to free speech protections did not apply, the court concluded.

Over the decades, the appeals court said, the U.S. Supreme 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.

Judge Diana Gribbon Motz, an appointee of former President Bill Clinton, wrote the unanimous opinion. Other judges on the panel were Judge Stephanie Thacker, an appointee of former President Barack Obama; and Judge A. Marvin Quattlebaum Jr., an appointee of Obama.

The court described what happened in November 2018, reconstructing the verbal exchange based on the testimony of witnesses.

Bartow was at the Quantico Marine Corps Exchange to shop for boots. A Black employee, Cathy Johnson-Felder, approached Bartow and said, Good morning. May I help you?

Bartow responded: If I had indigestion, diarrhea or a headache, would you still address me as good morning?

Johnson-Felder froze in shock but tried again.

Can I help you, sir? she asked.

Bartow replied: Im not a sirIm not a male, Im not a female, if I had a vagina, would you still call me sir?

Bartows raised voice drew the attention of a white uniformed Marine lieutenant colonel, who began a conversation with Bartow. Both men gestured at each other with pointed fingers, even as they continued to try on boots.

An onlooker, a Black man in civilian clothes, told Bartow that employees say sir or maam because they are purchasing merchandise at a military installation.

Bartow replied: If I called her a n- - - -r, would she still say good morning?

Vicki Herd, a store security officer, was called. She observed a heated conversation between Bartow and the Marine lieutenant colonel. Herd moved between the two men and then escorted Bartow out of the store. Base security officers arrested him.

The 4th Circuit said Bartows remarks were offensive and bizarre, and their meaning was difficult to discern. Bartows briefs suggested that his remarks reflected discomfort with gender labels and sex stereotypes. He argued that he used the slur because it can be just as offensive to be called the N-word as it for a transgender person to be misgendered.

The 4th Circuit noted that the N-word is pure anathema to African Americans. The epithet is so loaded with a legacy of slavery and racial hatred that it is inextricably linked with prejudice and hostility toward African Americans, the court said.

The slur would qualify as fighting words that could be prosecuted under the leading 1942 Supreme Court case defining fighting words not subject to First Amendment protection, Chaplinsky v. New Hampshire, the appeals court said.

But in the decades since the 1942 decision, the Supreme Court has imposed so many limitations on the fighting words exception that it has not since upheld a conviction under the doctrine.

Among the limitations are that the fighting words must be clearly directed at the person who hears them, and that the utterance must be likely to provoke an immediate violent reaction by the person addressed or by a reasonable person in that persons position.

In Bartows case, his series of rhetorical questions didnt provoke anyone, and the government didnt prove that it was likely to do so, the appeals court said.

The ugly racial epithet used by Bartow undoubtedly constituted extremely abusive language, the appeals court said. But because the government failed to prove (or even to offer evidence) that Bartows use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand.

Among the publications covering the decision are Courthouse News Service and the Associated Press.

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Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal