(CN) — A Fourth Circuit panel heard arguments Thursday over whether a former Air Force officer’s use of a racial slur toward a Black store clerk fell within the “fighting words” exception to free speech protection.
Lieutenant Colonel Jules Bartow was convicted under Virginia’s abusive language statute for posing a series of rhetorical questions that included a racial slur to a sales associate at the Marine Corps Exchange store in Quantico.
His counsel on Thursday pressed a three-judge-panel of the Richmond-based appeals court to overturn a federal judge’s denial of his motion for acquittal last year after a bench trial. The lower court judge held that Bartow’s speech was not protected under the First Amendment because he had used “fighting words.”
“The presence of the n-word is what makes this case complicated,” U.S. Circuit Judge Stephanie Thacker said during Thursday’s virtual hearing.
The Barack Obama appointee added that the key question in the case is “whether the n-word was specifically directed at an individual in circumstances where violence could result and is likely to do so.”
Store clerk Cathy Johnson-Felder testified that she had a heated exchange with Bartow, who was trying on boots, after she greeted him by saying “good morning.”
“If I had constipation, diarrhea, or a headache, would you still say good morning to me?” Bartow responded, according to court records.
When the clerk asked, “Can I help you, sir?” Bartow retorted, “I am not a male, I am not a female. If I had a vagina, would you still call me sir?”
Johnson-Felder testified that another customer, a Black man in civilian clothing, stepped in to intervene. Bartow then asked the other customer, “If I called her a nigger, would she still say good morning?”
This comment prompted Johnson-Felder to call security to escort Bartow out of the building, and eventually led to Bartow’s conviction.
Bartow’s attorney Rick Redmond with the Washington firm Cleary Gottlieb told the Fourth Circuit panel Thursday that his client’s “mode of expression was rhetorical questioning and therefore constituted protected speech and not ‘fighting words.’”
“Punishing his rhetorical speech because he used an offensive word while posing rhetorical questions is an unconstitutional viewpoint-based restriction on his speech and does not fall within the limited ‘fighting words’ exception,” Redmond said. “Like a self-styled, modern-day Socrates, he sought to challenge generally accepted norms through a series of rhetorical questions.”
U.S. Circuit Judge Marvin Quattlebaum, a Donald Trump appointee, noted that the attorney had described his client “very generously,” prompting Thacker to interject.
“You categorize all this as merely rhetorical questions by a ‘modern-day Socrates.’ Is it the case then that as long as you frame whatever you’re saying in the form of a question, it can never amount to fighting words?” she asked Redmond.
He argued that his client’s statements did not include fighting words because his intent was not to insult, but to make a point.
“There’s no question that the n-word was offensive in that context. Even though I think Lieutenant Colonel Bartow did not intend for it to be understood offensively, his intent was in conveying how offensive he found the word ‘sir’ to be,” Redmond said.
When Quattlebaum asked what would constitute fighting words in his view, the attorney responded by clarifying that this is not a facial challenge to the statute as limited by the 1973 Virginia Supreme Court case Mercer v. Winston.
That case, Redmond said, held that the state’s abusive language law is limited to words that have “the direct tendency to cause acts of violence by a person to whom, individually, the remark has been addressed.”
He pointed to the landmark 1971 Supreme Court case Cohen v. California case, in which the justices found that a young man had been wrongly charged under a similar state law related to fighting words for wearing a jacket decorated with the words, “Fuck the Draft. Stop the War.”
Arguing on behalf of the government Thursday, Assistant U.S. Attorney Daniel Young told the judges that Bartow’s conviction should stand.
“To paraphrase the district court, this defendant used a racial slur laden with historical invective as the final thrust in a vulgar and heated confrontation,” he said.
Responding to questions from U.S. Circuit Judge Diana Motz, a Bill Clinton appointee, Young said a single use of the racial slur alone does not necessarily constitute fighting words, but argued Bartow crossed the line into unprotected territory in light of all of the circumstances of the interaction.
The judges did not indicate when they would issue a ruling.