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. 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 find 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. That 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 clothes 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 correctly 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).