In a grand 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 racist epithet in the shoe shop at the Quantico, Virginia naval base. Jules A. Bartow, who is white, was arrested after a bizarre and shameful exchange with an employee, including using the “n-word” with the African American woman. Bartow’s highly offensive and repulsive language was denounced by the court, but the unanimous panel still overturned TS Ellis III, Senior District Judge of the Eastern District of Virginia, on the grounds of the first amendment.
Free speech advocates often have to defend those who are despised or whose language is deeply offensive. The first change does not protect the vernacular or the population. Such speeches and such people rarely need protection. This means that we must resist attacks on freedom of speech in cases where we find the language repulsive and repulsive. Such is the case with retired Air Force Lieutenant Colonel Jules A. Bartow.
In November 2018, Bartow joined the Quantico Marine Corps Exchange to buy boots. He was quickly supported by Cathy Johnson-Felder, an African American, who innocently said: “[G]Good Morning. Can I help you? “Bartow answered bizarrely with” If I had indigestion, diarrhea or a headache, would you still call me good morning? “Unimpressed, Johnson-Felder asked again:”[C]and I will help you, sir? “Bartow then replied,” I’m not a gentleman – I’m not a man, I’m not a woman, if I had a vagina, would you still call me a gentleman? “According to reports, Bartow spoke louder and louder when he cursed this employee because he had just tried to help him, which attracted a white uniformed Marine Lieutenant Colonel who began to argue with Bartow about his disgraceful treatment of Johnson fields.
During this ongoing argument between the two men, Bartow continued to try on boots when a crowd formed. An African American in civilian clothes also quarreled with Bartow, stating that “The reason for this [employees at the Exchange] Say “Sir” or “Ma’am” because you are buying goods for a military installation. “Bartow then said:” If I call her a [n****r]Would she still say good morning? “
A security guard was called and Bartow was shown out the door and then arrested by base security officers.
Bartow was charged under the Virginia Code § 18.2-416, which in the relevant part reads:
“If, in the presence or hearing of another person, a person is supposed to curse or abuse that other person, or use violent abusive language for that person in relation to himself or one of his relatives, or otherwise use that language, under circumstances that are reasonably calculated are to provoke as a violation of the peace he will be guilty of a class 3 offense. “
The language of the Statute is, in my opinion, unconstitutional, as any “curse or abuse” that “could provoke a breach of the peace” is extensively criminalized. However, the revised Appellate Body found that such laws are narrowly interpreted in light of the precedent. This includes Virginia State court rulings that the law must be limited to speech that “has a direct tendency to cause acts of violence by the individual to whom they are individually [the language is] addressed. “Mercer v. Winston, 199 SE2d 724, 726 (Va. 1973). As ruled by the United States Supreme Court in National Ass’n for the Advancement of Colored People v Button, 371 US 415, 445 (1963) the protection of the language is maintained “regardless of” the first amendment … to the truth, popularity or social usefulness of the ideas and beliefs [that] National Ass’n for the Advancement of Colored People versus Button, 371 US 415, 445 (1963).
Even if the Supreme Court allows the criminalization of “fighting words” in cases like Chaplinsky v. New Hampshire, 315 US 568, 572 (1942), the Court has severely curtailed the application of this exception. It is no longer enough to show how such a speech can “cause injury” but “to show that it is likely to pose a clear and present threat of serious substantive evil well beyond public inconvenience, anger or disturbance “. Terminiello v City of Chicago, 337 US 4 (1949). The Court has denied the criminalization of “abusive language” which causes a “breach of peace” and “violent resentment” in another person. Gooding v. Wilson, 405, US 518, 524 (1972).
Accordingly, the committee decided:
Everything about Bartow’s utterances was offensive and bizarre, and their meaning was difficult to see. His words were full of references to various bodily functions, sexual diseases, genitals and ultimately a harmful racist epithet. The video shows that while Bartow was speaking, people stopped to watch the scene and some were engaged to him. But most of the observers left to continue shopping before security led Bartow out of the store. And those who stayed kept trying on shoes, as Bartow did. There are no signs of violence. No one reported, and the video does not show that Bartow likely or actually provoked a violent response. The Supreme Court has made it clear that in order to get a conviction for the use of “fighting words”, the government must produce evidence of the “likelihood that the targeted person will react violently immediately”. Gooding, 405 US at 528. Here it didn’t.
In my opinion (as few on this blog will surprise) the decision is correct. Consider the alternative if we allow offensive language to be criminalized. Once we have free speech on this slippery slope, we are unlikely to find solid ground as various groups and individuals declare themselves offended and triggered by insults and insults.
For years I have written about the efforts of European countries to step up their crackdown on freedom of expression. The criminalization of the language has increased in countries like France, Germany and England, although there are laws against hate speech and language regulation. Most worrying is the call for European-style language restrictions in this country.
Free speech requires light lines. One of the greatest threats to freedom of expression is the chilling effect caused by ambiguous or vague standards such as those contained in Virginia law. Any case of an obnoxious or disgusting person invites us to make an exception or find a sophisticated excuse for not following our principles. The temptation is particularly great in such cases when the defense of free speech can be confused with the support of bigotry.
It is never popular to fight for the freedom of speech for people like Bartow. After being quoted in favor of that ruling in a Washington Post article last night, I received emails denouncing me as a de facto racist, including one from a lawyer calling me for “defending bigotry under the Cover of Constitutional Freedom “condemned. It is a common attack on free speech advocates to claim that in such cases we are defending bigotry as opposed to free speech. The “cloak of constitutional freedom” is in fact the protection of unpopular language by the First Amendment. Indeed, Justice Thurgood Marshall famously stated in Police Dep’t of Chi. v. Mosley, 408, US 92, 95 (1972) that “the government has no power to limit the term based on its message, ideas, subject matter, or content”.
Bartow is the price we pay for free speech, but it’s nowhere near as expensive as giving up the bright line that protects us all from criminal language codes.
Here is the opinion: USA versus Bartow