In a major but likely controversial victory for free speech, the United States Court of Appeals for the Fourth Circuit overturned the conviction of a retired Air Force Colonel for using a racial epithet at the shoe store on the Marine base at Quantico in Virginia. Jules A. Bartow, who is white, was arrested after a bizarre and disgraceful exchange with an employee, including the use of the “n word” with the African American woman. The highly offensive and repugnant language of Bartow was denounced by the court, but the unanimous panel still reversed T.S. Ellis, III, Senior District Judge of the Eastern District of Virginia on First Amendment grounds.
Free speech advocates must often defend those who are despised or language that is deeply offensive. The First Amendment is not designed to protect popular speech or popular people. Such speech and such people rarely need protection. That means that we must resist attacks on free speech in cases where we finds speech to be repugnant and repulsive. That is the case with retired Air Force Lieutenant Colonel Jules A. Bartow.
In November 2018, Bartow entered the Quantico Marine Corps Exchange to shop for boots. He was quickly assisted by Cathy Johnson-Felder, an African American, who innocently said “[G]ood morning. May I help you?” Bartow responded bizarrely with “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?” Undeterred Johnson-Felder again asked “[C]an I help you, sir?” Bartow then responded, “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?” Bartow reportedly was speaking louder and louder as he berated this employee for simply trying to help him. The drew a white uniformed Marine lieutenant colonel who began to argue with Bartow over his disgraceful treatment of Johnson-Felder.
During this continued argument between the two men, Bartow continued to try on boots as a crowd formed. An African-American in civilian cloths also argued with Bartow and explained that “the reason that [employees at the Exchange] say ‘sir’ or ‘ma’am’ is because you are purchasing merchandise on a military installation.” Bartow then said: “If I called her a [n****r], would she still say good morning?”
A security officer was called over and Bartow was escorted out of the door and then arrested by base security officers.
Bartow was charged under Virginia Code § 18.2-416, which reads in pertinent part:
“If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.”
The language of the statute in my view is unconstitutional due to its sweeping criminalization of any “curse or abuse” that could “provoke a breach of the peace.” However, the appellate panel corrected noted that such laws are narrowly construed in light of controlling precedent. This includes Virginia state court rulings that the statute must be confined to speech that has “a direct tendency to cause acts of violence by the person to whom, individually, [the language is] addressed.” Mercer v. Winston, 199 S.E.2d 724, 726 (Va. 1973). As the United States Supreme Court ruled in National Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 445 (1963), the protection of speech is maintained under the First Amendment “without regard . . . to the truth, popularity, or social utility of the ideas and beliefs [that] are offered.” National Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 445 (1963).
Even with the Supreme Court’s allowance for the criminalization of “fighting words” in cases like Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Court has sharply abridged the application that exception. It is no longer enough to show how such speech can “inflict injury,” but must be “shown likely to produce a clear and present danger of a serious 7 substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. City of Chicago, 337 U.S. 4 (1949). The Court has rejected the criminalization of “abusive language” that provokes a “breach of the peace” and “violent resentment” in another person. Gooding v. Wilson, 405 U.S. 518, 524 (1972).
Accordingly, the panel ruled:
Everything about Bartow’s remarks was offensive and bizarre, and their meaning was difficult to discern. His words were laden with references to various bodily functions, sexual diseases, genitalia, and ultimately, a noxious racial epithet. The video shows that, while Bartow was speaking, people stopped to watch the scene unfold, and some engaged with him. But most of the observers left to carry on with their shopping before security escorted Bartow from the store. And those who stayed continued to try on shoes, as Bartow did. There are no signs of violence. No one reported, and the video does not reveal, that Bartow was likely to, or actually did, invoke a violent response. The Supreme Court has made clear that to obtain a conviction for use of “fighting words,” the Government must offer evidence of the “likelihood that the person addressed would make an immediate violent response.” Gooding, 405 U.S. at 528. Here, it has not.
In my view (as will surprise few on this blog), the decision is correct. Consider the alternative if we allow the criminalization of offensive speech. Once we place free speech on that slippery slope, we are unlikely to find terra firma as different groups and individuals declare themselves offended and triggered by such language.
I have written for years on the effort of European countries to expand their crackdown on free speech. The criminalization of speech has expanded in countries like France, Germany, and England though hate speech laws and speech regulation. Most concerning is the call for European style speech limits in this country.
Free speech demands bright lines. One of the greatest threats to free speech is the chilling effect caused by ambiguous or vague standards like the one contained in the Virginia statute. Every case of an obnoxious or repugnant individual invites us to make an exception or adopt some nuanced excuse for not following our principles. The temptation is particularly great in cases like this one when defending free speech can be confused with supporting bigotry.
It is never popular to fight for the free speech rights of individuals like Bartow. Indeed, after being quoted in the Washington Post in favor of this ruling last night, I received emails denouncing me as a de facto racist, including one an attorney condemning me for “defending bigotry under the guise of constitutional freedom.” It is a common attack on free speech advocates to claim that we defend bigotry as opposed to free speech in such cases. The “guise of constitutional freedom” is in fact the First Amendment’s protection of unpopular speech. Indeed, Justice Thurgood Marshall famously declared in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Bartow is the price we pay for freedom of speech but it is not nearly as high of a cost as abandoning the bright line protecting us all for criminal speech codes.
Here is the opinion: United States v. Bartow
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