997 F.3d 203
4th Cir.2021Background
- In November 2018 Jules A. Bartow (white) was trying on boots at the Quantico Marine Corps Exchange and, during a loud exchange, asked rhetorical questions and used the racial slur at issue. The store video lacked audio.
- The Government relied on two witnesses: Cathy Johnson-Felder (African American employee) who testified she was "taken aback," and Vicki Herd (store security) who did not recall hearing the slur but observed a heated argument and escorted Bartow out.
- Bartow was convicted by a magistrate under Va. Code § 18.2-416 (abusive language under circumstances reasonably calculated to provoke a breach of the peace); the magistrate found the slur was directed at an African American man present.
- The district court affirmed; Bartow appealed to the Fourth Circuit. The appellate court reviewed the conviction against First Amendment "fighting words" doctrine constraints.
- The Fourth Circuit concluded the Government offered no evidence that the slur was likely to provoke an immediate violent response by the person(s) to whom it was individually addressed, and reversed and remanded to vacate the conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence under Va. Code § 18.2-416 given First Amendment "fighting words" limits | Govt: the slur was abusive and, in context of a heated exchange, supported conviction for abusive language likely to provoke a breach of the peace | Bartow: First Amendment protects speech unless it has a direct tendency to produce an immediate violent response by the person addressed; prosecution offered no such evidence | Reversed — insufficient evidence that the slur was likely to provoke immediate violence by the addressee(s) |
| Whether the n-word is per se unprotected fighting words | Govt: context-dependent but slur is extremely abusive and supports conviction | Bartow: even the most egregious slur is not per se unprotected; context and likelihood of immediate violence must be proved | Court: the slur is highly abusive but not per se outside First Amendment protection; context and proof of immediate violent tendency required |
| Identification of addressee and required proof about that person's likely reaction | Govt: witnesses implicated the employee and an African American man as addressees | Bartow: record unclear who was addressed and no evidence the addressee would react violently | Held: the prosecution failed to identify and prove the requisite likelihood of immediate violent response by the individual addressee(s) |
| Standard of review and evidentiary burden for "fighting words" claims | Govt: criminal conviction under state statute valid if abusive language provoked breach of the peace | Bartow: appellate court must independently review whether speech falls outside First Amendment protections and ensure prosecution met strict evidentiary demands | Court: conducted independent review, applied Supreme Court limitations on "fighting words," and required more concrete evidence than was presented |
Key Cases Cited
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (originary definition of "fighting words" as words that by their utterance inflict injury or tend to incite immediate breach of the peace)
- Gooding v. Wilson, 405 U.S. 518 (1972) (requires fighting-words limitation that language have a direct tendency to cause immediate violent response by person addressed)
- Cohen v. California, 403 U.S. 15 (1971) (fighting words limited to direct personal insults directed at hearer)
- Texas v. Johnson, 491 U.S. 397 (1989) (unchanged emphasis on context and personal-address requirement for fighting words)
- Mercer v. Winston, 199 S.E.2d 724 (Va. 1973) (Virginia construction: § 18.2-416 reaches only abusive language with direct tendency to cause violence by the person individually addressed)
- Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (appellate courts must independently review allegedly unprotected speech categories)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (context matters in determining whether words are fighting words)
- Terminiello v. City of Chicago, 337 U.S. 1 (1949) (discusses limits for speech that produces a clear and present danger of serious substantive evils)
- United States v. Stevens, 559 U.S. 460 (2010) (unprotected speech categories are narrowly defined)