Air Force Lieutenant Colonel Jules A. Bartow (Ret.)wins one for 1st Amendment

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, Virginia, ” Johnathan Turley Constitutional Law expert wrote.

Mr Turley agrees with the Court which stated:

The Court Jules A. Bartow challenges his criminal conviction for using “abusive language” in violation of Virginia Code § 18.2-416, as assimilated by 18 U.S.C. § 13. 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, individually, 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. Accordingly, we must reverse and remand the case to the district court to vacate Bartow’s conviction and sentence.

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.

STATEMENT OF THE ISSUE

Whether Jules Bartow’s rhetorical use of the word “nigger” and reference to the Ku Klux Klan fell within the “fighting words” exception to the First Amendment, as required for him to commit the offense of abusive language to another, in violation of Virginia Code § 18.2-416.

STATEMENT OF THE CASE

This appeal arises out of an unusual interaction at the Quantico Marine Corps Exchange between Jules Bartow, a retired lieutenant colonel shopping for boots, an Exchange sales associate who is African-American, and two other customers, one a uniformed Marine lieutenant colonel and the other an African-American civilian. During this interaction, Mr. Bartow had expressed his displeasure at the sales associate’s use of the salutations “good morning” and “sir” by asking several rhetorical, hypothetical questions: “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?”; “I am not a male, I am not a female. If I had a vagina, would you still call me sir?”; and, to the second customer, “If I called her a nigger, would she still say good morning?”

On the basis of this incident, the government charged Mr. Bartow with one count of disorderly conduct. J.A. 4 (alleging violation of Va. Code § 18.2-415A, as assimilated by 18 U.S.C. § 13). The government later dropped the disorderly conduct charge, and instead charged Mr. Bartow with abusive language to another. J.A. 6 Doc. 9 (alleging violation of Va. Code §18.2-416, as assimilated by 18 U.S.C. § 13).

Mr. Bartow had a bench trial in the magistrate court, at which the government presented testimony from two Marine Corps Exchange employees, Cathy Johnson-Felder and Vicki Herd. The government also played footage from a security surveillance camera located inside the Exchange at various points of the trial. See J.A. 70-71 (Rule 58(g) report summarizing proceedings); J.A. 8-66 (transcript, bench trial).

Ms. Johnson-Felder testified that she was a retail sales associate at the Marine Corps Community Services (the Exchange) and was working in that capacity at the time Mr. Bartow was shopping. J.A. 13-14, 19. When she came in contact with Mr. Bartow, who was trying on boots, she greeted him by saying “good morning.” Id. at 15, 21, 22, 28, 29, 34. According to Ms. Johnson-Felder, Mr. Bartow responded, “If I had constipation, diarrhea, or a headache, would you still say good morning to me?”Id. at 29, 29-30; see id. at 15 (similar). When she also asked, “Can I help you, sir,” Mr. Bartow responded, “I am not a male, I am not a female. If I had a vagina, would you still call me sir?” Id. at 34, 35, 37. Mr. Bartow remained in the same position throughout the conversation and never approached Ms. Johnson-Felder, who testified that she “was just so taken aback” that she was somewhat “in shock” and froze where she was. Id. at 21, 22, 28, 37.

Ms. Johnson-Felder then testified that just a moment or so after, a uniformed Marine lieutenant colonel intervened and he and Mr. Bartow began speaking to one another. J.A. 16-17, 32. Ms. Johnson-Felder described the interchange between the two as heated. Id. at 22-23, 40. The surveillance video of the interchange reveals that Mr. Bartow continued to try on boots during it. See id. at 28.

Ms. Johnson-Felder testified that when another customer, an African-American man in civilian clothing, tried to intervene, Mr. Bartow asked him, “If I called her a nigger, would she still say good morning?” J.A. 18, 19, 32, 33. Soon after, an Exchange asset protection associate, Vicki Herd, came and told Mr. Bartow to leave. Id. at 25; see id. at 23-24, 33, 41-42.

Ms. Herd testified that when she arrived at the scene, she saw Mr. Bartow on the floor, on one knee, trying on shoes while the uniformed Marine lieutenant colonel was standing over him and arguing. J.A. 39, 42. She further described how the lieutenant colonel was pointing his finger at Mr. Bartow and was very animated and that, in response, she stepped between the two men. Id. at 41, 42. During this, Ms. Johnson-Felder was behind them. Id. at 43; see id. at 24. While Ms. Herd claimed that she heard Mr. Bartow say something about the Ku Klux Klan, she did not know what was specifically said or what the context was. Id. at 40, 44. Nor did she hear Mr. Bartow use the n-word. Id. at 41, 44. She did, however, escort Mr. Bartow out of the store without incident. Id. at 42, 43, 44.

Following the close of evidence, the magistrate judge denied counsel’s motion for judgment of acquittal. J.A. 51; see id. at 45-51 (Rule 29 arguments). After closing arguments, the court found Mr. Bartow guilty. Id. at 52-58. Proceeding immediately to sentencing, the court imposed a $500 fine (the statutory maximum penalty), and imposed a $10 special assessment. Id. at 58-59, 66; see id. at 67 (judgment).

Mr. Bartow timely appealed to the district court and, following the submission of briefs from Mr. Bartow and the government, that court heard oral argument on May 10, 2019. See J.A. 68 (notice of appeal); id. at 76-86, 87-98, 99-107 (parties’ briefing); id. at 108-29 (transcript, oral argument). On June 17, 2019, the district court issued its order affirming the judgment. J.A. 130-36. Mr. Bartow now appeals that order. J.A. 137-38.

SUMMARY OF ARGUMENT

Mr. Bartow’s speech was rhetorical speech that was reasonably calculated to communicate his beliefs about the offensiveness of using the term “sir.” Thus, his speech falls squarely within the protections of the First Amendment, and hisconviction must be overturned. While Mr. Bartow’s point may have been understood as offensive, his provocative phrasing of that point is not enough for it to fall within the narrow “fighting words” exception to the First Amendment. Mr. Bartow’s use of an offensive term was directly related to his rhetorical argument and is absolutely protected by the First Amendment.

In ruling to the contrary, the district court erred by relying on the reactions of the Marine lieutenant colonel to Mr. Bartow’s speech. Only “fighting words” directed at an individual may be punished under Virginia law and the First Amendment. The record, though, is devoid of any evidence that the alleged “fighting words” were directed at the lieutenant colonel. In the absence of any evidence that Mr. Bartow directed “fighting words” at the lieutenant colonel, the lieutenant colonel must be understood to be only an agitated bystander whose reaction to Mr. Bartow’s speech is legally irrelevant. The Supreme Court has refused to grant agitated bystanders a heckler’s veto over otherwise-protected speech, and the Court has held that speech cannot be punished merely because it may upset those who overhear it.

Finally, the district court erred by considering Mr. Bartow’s reference to the Ku Klux Klan when neither witness who testified could recall the context in which the reference was made. Without any further evidence on the record, any attempt to contextualize the reference so that it could meaningfully inform the “fighting words” analysis is impermissibly speculative.

STANDARD OF REVIEW

Whether speech constitutes “fighting words” outside the full protection of the First Amendment is a mixed question of fact and law, and de novo review is appropriate. See Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring) (noting that questions like “whether fighting words are likely to provoke the average person to retaliation . . . are mixed questions of law and fact that are properly subject to de novo appellate review”) (internal citations and quotations omitted). The ARGUMENTS FOUND HERE