UNITED STATES OF AMERICA v. JULES A. BARTOW
No. 19-4496
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 11, 2021
PUBLISHED
Argued: December 10, 2020
Decided: May 11, 2021
Before MOTZ, THACKER, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.
ARGUED: Richard William Redmond, CLEARY, GOTTLIEB, STEEN & HAMILTON LLP, Washington, D.C., for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Aidan Taft Grano, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Jules A. Bartow challenges his criminal conviction for using “abusive language” in violation of
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.1
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
Bartow pled not guilty to violating
On appeal, the district court affirmed. The court did not discuss to whom Bartow directed the epithet. The court seemed to rely on the apparent friction between the white lieutenant colonel and Bartow as a basis for concluding that Bartow‘s use of the n-word “elicited an impending breach of the peace.”
Bartow noted a timely appeal to this court.
II.
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 Supreme Court of Virginia has limited the sweep of
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
In 1942, in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Court defined “fighting words” as words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 572. The Chaplinsky Court concluded that “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution” and so may be punishable “as a criminal act” despite the First Amendment‘s general prohibition on the criminalization of speech. Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 309–10 (1940)).
If this remained the Supreme Court‘s teaching on the contours of the “fighting words” exception, Bartow‘s abhorrent slur would undoubtedly constitute a “fighting word” punishable “as a criminal act.” Id. But in the decades since Chaplinsky, the Court has imposed a number of limitations on the “fighting words” exception to First Amendment protection.
First, the Court has effectively eliminated the “inflict injury” prong of the “fighting words” analysis. See generally Purtell v. Mason, 527 F.3d 615, 623–24 (7th Cir. 2008) (tracing the demise of the “inflict-injury” prong, beginning with Terminiello v. City of Chicago, 337 U.S. 1 (1949)). Now, the Government may only criminally prosecute as a “fighting word” speech “shown likely to produce a clear and present danger of a serious
Second, the Supreme Court has repeatedly indicated that the limiting construction adopted by the New Hampshire court in Chaplinksy — forbidding only those words “that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed” — must be read into any state law criminally punishing abusive language. Gooding v. Wilson, 405 U.S. 518, 524 (1972) (quoting Chaplinksy, 315 U.S. at 753); see also Cohen v. California, 403 U.S. 15, 20 (1971); Texas v. Johnson, 491 U.S. 397, 409 (1989).
Third, the Court has explained that the “small class” of “fighting words” is limited to “direct personal insults” — statements clearly “directed to the person of the hearer,” who is “actually or likely to be present.” Johnson, 491 U.S. at 409; Cohen, 403 U.S. at 20 (quoting Cantwell, 310 U.S. at 309). Without evidence of a direct personal insult, the Court has determined that the Government may not obtain a conviction for “fighting words.” Id.
Fourth, the Supreme Court has clarified that even a ban on “opprobrious” and “abusive language” that provokes a “breach of the peace” and “violent resentment” in another person does not come within the “fighting words” exception to First Amendment protection. Gooding, 405 U.S. at 524. Rather, the “fighting words” exception applies only to “utterances where there was [a] likelihood that the person addressed would make an immediate violent response.” Id. at 528 (emphasis added); see also Johnson, 491 U.S. at 410.
Taken together, these limitations, fully adopted by Virginia‘s highest court, have sharply curtailed the reach of the “fighting words” exception.2 Of course, we must construe Bartow‘s statute of conviction,
In doing so, we review the magistrate‘s “[f]indings of fact . . . for clear error, and [conclusions] of law . . . de novo.” United States v. Bursey, 416 F.3d 301, 305–06 (4th Cir. 2005). But, because “the limits of [an] unprotected category” such as “fighting words,” must be “determined by the judicial evaluation of special facts that have been deemed to have constitutional significance,” a reviewing court must conduct an “independent examination’ of the allegedly unprotected material.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505, 507–08 (1984) (quoting New York v. Ferber, 458 U.S. 747, 774 n.28 (1982)). Thus, an appellate court must conduct “an independent review of the
We now turn to that task.
III.
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)
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.
As explained above, Virginia‘s highest court has authoritatively construed
The Government maintains that Bartow addressed the slur to both Johnson-Felder and the African American man. The magistrate judge found that Bartow directed the slur at the African American man. The district court did not state to whom it believed the vicious slur was addressed, but it seemed to base its affirmance on the reaction of the white lieutenant colonel to Bartow. The parties agree, however, that he was not Bartow‘s addressee. For purposes of our discussion, we will assume the slur was directed at Johnson-Felder and the African American man.
We turn to the relevant evidence offered with respect to the violent reaction of Johnson-Felder and/or the African American man. But there is no such evidence. The Government offered no evidence that either of them actually responded violently to Bartow‘s hateful slur or that a reasonable person in their positions would have done so. The Government offered no testimony of any kind from the African American man, or about his response to the epithet, and Johnson-Felder only testified that before Bartow uttered the epithet his odd questions to her left her “taken aback.” No witness testified to,
Everything about Bartow‘s remarks was offensive and bizarre, and their meaning was difficult to discern.3 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.
Although now rare, criminal convictions for the use of “fighting words” still are possible, but they require the prosecution to offer compelling evidence that meets all the limitations on the “fighting words” doctrine. State v. Liebenguth, No. 20145, 2020 WL 5094669 (Conn. Aug. 27, 2020), demonstrates this point. There, the prosecution presented
The Government has offered no similar evidence here. The record contains no evidence that Bartow employed other profanity, repeated the vile slur, or issued any kind of threat, let alone one dripping with racism. While he did point to Johnson-Felder and to the lieutenant colonel (and others) while he was talking, the video does not suggest that Bartow was pugnacious. He did not take any aggressive actions that might have provoked violence. Indeed, Bartow‘s “mode of speech,” R.A.V., 505 U.S. at 386 — a series of rhetorical questions while trying on shoes — did not provoke anyone. Unlike the
In sum, the Government has not proven that Bartow‘s use of the vile slur was “likely to provoke a violent reaction . . . by the person to whom, individually, [it was] addressed,” Mercer, 199 S.E.2d at 726; the Government has not proven the slur was used as a “direct personal insult,” Johnson, 491 U.S. at 409; and the Government has not proven that “the actual circumstances” of Bartow‘s use of the slur were particularly conducive to violence, id. This total lack of evidence requires us to vacate Bartow‘s conviction.
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.
IV.
For the foregoing reasons, we reverse the judgment of the district court and remand the case to that court to vacate Bartow‘s conviction and sentence.
REVERSED AND REMANDED