Shameful Speech Not Criminal

A criminal conviction under a Virginia statute that prohibits “abusive language” was reversed by the United State Court of Appeals for the Fourth Circuit

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.

I.
In November 2018, retired Air Force Lieutenant Colonel Jules A. Bartow, who is white, entered the Quantico Marine Corps Exchange to shop for boots. The entirety of the evidence offered by the Government to prove its case against Bartow consisted of a store camera video (without audio) of the short encounter at issue here, and the testimony of two store employees as to their recollections of the events.

The first employee, Cathy Johnson-Felder, an African American, testified that she approached Bartow and said, “[G]ood morning. May I help you?” Bartow responded, “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?” Bartow raised his voice to Johnson-Felder, who froze in shock. Johnson-Felder again asked Bartow, “[C]an I help you, sir?” He 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 gestured and pointed his finger several times at Johnson-Felder, who was a number of steps away from him. She was “taken aback.”

Bartow’s raised voice drew onlookers, including a white uniformed Marine lieutenant colonel. The lieutenant colonel began a conversation with Bartow, during which both men gestured at one another with pointed fingers. Bartow continued to try on boots throughout this exchange, as did the lieutenant colonel.

As the discussion continued, a few more people gathered around, including an African American man in civilian clothes. Johnson-Felder related that the civilian explained to Bartow 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?” Johnson-Felder’s testimony is unclear as to whether she believed this slur was directed to her or to the African American man in civilian clothes, or both.

In any event, Johnson-Felder, who remained several feet away from Bartow, asked another employee to call over Vicki Herd, a store security officer. Herd, the only other witness called by the Government at trial, testified that she was asked to go to the area where shoes were sold to address “loud noises” and “people arguing.” When Herd did so, she encountered Bartow on the floor trying on shoes and a white lieutenant colonel standing over Bartow and arguing with him. Herd could not recall exactly what Bartow said, but she testified that she did not hear him use the n-word. She did observe a “heated conversation” between Bartow and the white lieutenant colonel, who was “very animated” and pointed his finger at Bartow. Herd “moved between the two,” and told Bartow to put on his shoes and leave the store. She escorted Bartow out and base security officers arrested him.

Abusive language

Virginia Code § 18.2-416 first requires proof of “abusive language.” The magistrate judge found the epithet constituted abusive language. We have no difficulty agreeing that the challenged speech constituted extremely abusive language.

It is hard to think of an English term that is more abhorrent. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998) (“[n****r]” is “the most noxious racial epithet in the contemporary American lexicon”); Randall L. Kennedy, The David C. Baum Lecture: “Nigger!” As A Problem in the Law, 2001 U. Ill. L. Rev. 935 (2001) (citing Webster’s Dictionary for the proposition that the slur is “probably the most offensive word in English.”). This vile epithet has a “unique . . . power to offend, insult, and belittle.” Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 38 n.3 (2d Cir. 2014); see also Charles R. Lawrence, III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 452 (1990).

Indeed, this epithet is so loaded with a legacy of slavery and racial hatred that it is inextricably linked with prejudice and hostility toward African Americans. See Nigger, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/126934; Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (because the slur “‘sums up . . . all the bitter years of insult and struggle in America’” “no other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against AfricanAmericans”) (quoting Langston Hughes, The Big Sea 269 (2d ed. 1993) (1940)); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and NameCalling, 17 Harv. C.R.-C.L. L. Rev. 133, 169 (1982) (noting that use of this “slur necessarily calls upon the entire history of slavery and racial discrimination in this country”). For these reasons, we have previously recognized that the epithet is “[f]ar more than a ‘mere offensive utterance’” — it is “pure anathema to African-Americans.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001); see also Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Without any reservation, we reiterate that indictment today.

But the Virginia statute does not (and could not consistent with the First Amendment) criminalize the mere statement of this abhorrent word. The Government recognizes, “even the most egregious racial slur is not a fighting word per se. The circumstances in which the word is used matter a great deal.” Gov’t Br. at 20.

Fighting words

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.

And violent reaction

Our holding necessarily follows from the Supreme Court’s stringent evidentiary demands. The Court has so narrowed the “fighting words” exception that it has not upheld a criminal conviction under the doctrine since Chaplinksy itself. We cannot do so today. Over the decades, the 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.

(Mike Frisch)