First Amendment
By Debra Cassens Weiss
May 12, 2021, 10:33 am CDT
Image from Shutterstock.
A federal appeals court has reversed the conviction of a white retired Air Force lieutenant colonel who used the N-word while complaining about a Black store employee who asked whether he needed any help.
If I called her a n- - - -r, would she still say good morning? the retired officer had said.
The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday that Jules A. Bartows speech was protected by the First Amendment, and he could not be convicted for using abusive language.
The First Amendment allows a conviction only when language has a direct tendency to cause immediate acts of violence by the person to whom it was addressed, the appeals court said. Under the facts of the case, that fighting words exception to free speech protections did not apply, the court concluded.
Over the decades, the appeals court said, the U.S. Supreme 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.
Judge Diana Gribbon Motz, an appointee of former President Bill Clinton, wrote the unanimous opinion. Other judges on the panel were Judge Stephanie Thacker, an appointee of former President Barack Obama; and Judge A. Marvin Quattlebaum Jr., an appointee of Obama.
The court described what happened in November 2018, reconstructing the verbal exchange based on the testimony of witnesses.
Bartow was at the Quantico Marine Corps Exchange to shop for boots. A Black employee, Cathy Johnson-Felder, approached Bartow and said, Good morning. May I help you?
Bartow responded: If I had indigestion, diarrhea or a headache, would you still address me as good morning?
Johnson-Felder froze in shock but tried again.
Can I help you, sir? she asked.
Bartow replied: Im not a sirIm not a male, Im not a female, if I had a vagina, would you still call me sir?
Bartows raised voice drew the attention of a white uniformed Marine lieutenant colonel, who began a conversation with Bartow. Both men gestured at each other with pointed fingers, even as they continued to try on boots.
An onlooker, a Black man in civilian clothes, told Bartow that employees say sir or maam because they are purchasing merchandise at a military installation.
Bartow replied: If I called her a n- - - -r, would she still say good morning?
Vicki Herd, a store security officer, was called. She observed a heated conversation between Bartow and the Marine lieutenant colonel. Herd moved between the two men and then escorted Bartow out of the store. Base security officers arrested him.
The 4th Circuit said Bartows remarks were offensive and bizarre, and their meaning was difficult to discern. Bartows briefs suggested that his remarks reflected discomfort with gender labels and sex stereotypes. He argued that he used the slur because it can be just as offensive to be called the N-word as it for a transgender person to be misgendered.
The 4th Circuit noted that the N-word is pure anathema to African Americans. The epithet is so loaded with a legacy of slavery and racial hatred that it is inextricably linked with prejudice and hostility toward African Americans, the court said.
The slur would qualify as fighting words that could be prosecuted under the leading 1942 Supreme Court case defining fighting words not subject to First Amendment protection, Chaplinsky v. New Hampshire, the appeals court said.
But in the decades since the 1942 decision, the Supreme Court has imposed so many limitations on the fighting words exception that it has not since upheld a conviction under the doctrine.
Among the limitations are that the fighting words must be clearly directed at the person who hears them, and that the utterance must be likely to provoke an immediate violent reaction by the person addressed or by a reasonable person in that persons position.
In Bartows case, his series of rhetorical questions didnt provoke anyone, and the government didnt prove that it was likely to do so, the appeals court said.
The ugly racial epithet used by Bartow undoubtedly constituted extremely abusive language, the appeals court said. But because the government failed to prove (or even to offer evidence) that Bartows use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand.
Among the publications covering the decision are Courthouse News Service and the Associated Press.
Follow this link:
Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal
- Trump: First Amendment protects efforts to overturn election - USA TODAY - March 29th, 2024 [March 29th, 2024]
- To Fight Ban Bill, TikTok's Best Hopes Lie in First Amendment Challenge - The Information - March 29th, 2024 [March 29th, 2024]
- Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- FIRST AMENDMENT VIOLATION?: Man removed from Cape council meeting files lawsuit - FOX 4 News Fort Myers WFTX - March 29th, 2024 [March 29th, 2024]
- Trump team's First Amendment argument is 'so weak' in Georgia election interference case - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Associated Press - March 29th, 2024 [March 29th, 2024]
- A national TikTok ban and the First Amendment - National Constitution Center - March 29th, 2024 [March 29th, 2024]
- Trump attorney says Georgia election case hinges on First Amendment Deseret News - Deseret News - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Atlanta Journal Constitution - March 29th, 2024 [March 29th, 2024]
- Courts Should Affirm First Amendment Rights of Youths in the Digital Age: The Case for a 21stCentury Tinker - Cato Institute - March 29th, 2024 [March 29th, 2024]
- Trump legal news brief: Prosecutors tell Judge McAfee that First Amendment doesn't apply to Trump's 'criminal intentions' - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Trump attorney tries to have Georgia case dismissed on First Amendment grounds - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump attorney, prosecutors spar over move to have Georgia case dismissed on First Amendment grounds - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Donald Trump Georgia court motions hearing today live stream - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Bowling Green Daily News - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Williss election interference charges, attorney argues - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- Judicial Rulemaking and Lucidity: Justice Barrett's First Amendment Opinion in Lindke v. Freed - American Enterprise Institute - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Willis's election interference charges, attorney argues - Colorado Springs Gazette - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting election interference charges - Southernminn.com - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - messenger-inquirer - March 29th, 2024 [March 29th, 2024]
- Lawyers for the State argue against Trump First Amendment challenge in Georgia case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- OPINION: The possible TikTok ban is an infringement on our First Amendment rights - The Suffolk Journal - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Times Daily - March 29th, 2024 [March 29th, 2024]
- An iPhone, YouTube & the First Amendment: Man in St Louis tests boundaries of constitution through videos - First Alert 4 - March 29th, 2024 [March 29th, 2024]
- Lawyer argues Georgia election RICO case against Trump be dismissed over First Amendment - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations - Reason - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - Yahoo Singapore News - March 29th, 2024 [March 29th, 2024]
- Trump's attorney says election inference case should be thrown out over 1st Amendment protections - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - AOL - March 29th, 2024 [March 29th, 2024]
- Judge sets new hearing date in 2020 Georgia election interference case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks - Reason - March 22nd, 2024 [March 22nd, 2024]
- Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News - March 22nd, 2024 [March 22nd, 2024]
- West Texas drag show becomes a First Amendment battleground - The Texas Tribune - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason - March 22nd, 2024 [March 22nd, 2024]
- News/Media Alliance Joins Brief Defending First Amendment Editorial Rights of Documentarians - News/Media Alliance - March 22nd, 2024 [March 22nd, 2024]
- The State of the First Amendment: Free Speech - University of Colorado Boulder - March 22nd, 2024 [March 22nd, 2024]
- Justices Seem Likely to Side With N.R.A. in First Amendment Dispute - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Justice Kavanaugh loses patience with the judiciarys far right - Vox.com - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson ripped for worrying about the First Amendment 'hamstringing' government: 'Literally the point' - Fox News - March 22nd, 2024 [March 22nd, 2024]
- Analysis: SCOTUS Oral Arguments Bode Well For NRA First Amendment Claim [Member Exclusive] - The Reload - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear First Amendment challenge to New York's financial 'blacklisting' of NRA - Fox News - March 22nd, 2024 [March 22nd, 2024]
- NRA Goes To The Supreme Court Today In First Amendment CaseHere's What To Know - Forbes - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear case of former Castle Hills councilwoman who claims First Amendment rights were violated - KSAT San Antonio - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear arguments in key First Amendment case challenging Biden admin teamwork with Big Tech - Fox News - March 22nd, 2024 [March 22nd, 2024]
- "Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KXLY Spokane - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court hears free speech case that united the NRA and the ACLU - The Washington Post - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Wary of States' Bid to Limit Federal Contact With Social Media Companies - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Opinion: A First Amendment Fizzle at the U.S. Supreme Court - The Atlanta Journal Constitution - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment is under attack in Americas Oceania - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Education Institutions Grapple With Overlap of First Amendment and Anti-Discrimination Laws - JD Supra - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Caledonian-Record - March 22nd, 2024 [March 22nd, 2024]
- Note to Justice Jackson: First Amendment Should Hamstring Biden - Daily Signal - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KEYT - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment Supreme Court case right wingers are crazy for - The Independent - March 22nd, 2024 [March 22nd, 2024]
- Ketanji Brown Jackson concerned First Amendment is hamstringing government from censorship - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson: First Amendment "Hamstringing" Federal Response To "Threatening Circumstances, From The ... - RealClearPolitics - March 22nd, 2024 [March 22nd, 2024]
- Opinion: Sen. Chuck Grassley should stand up for the First Amendment and support the PRESS Act - The Gazette - March 18th, 2024 [March 18th, 2024]
- The Supreme Court must protect the First Amendment in Murthy v. Missouri - Washington Examiner - March 18th, 2024 [March 18th, 2024]
- A Hillsborough judge invokes the First Amendment in a case related to a 2022 election campaign - WMNF - March 18th, 2024 [March 18th, 2024]
- John Stockton's lawyer claims first amendment violation as basis for COVID-19 lawsuit - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- Scientology Scores A First Amendment Win Over Leah Remini, But Harassment Claims Against Church Still Stand, Judge Rules - Deadline - March 18th, 2024 [March 18th, 2024]
- Supreme Court to hear First Amendment cases, weigh in on Texas immigration law - MSN - March 18th, 2024 [March 18th, 2024]
- 7 Expert Takeaways As the Supreme Court Considers Government Influence on Content Moderation - Just Security - March 18th, 2024 [March 18th, 2024]
- Conflict between First Amendment and discrimination on Broadway | Strictly Legal - The Cincinnati Enquirer - March 18th, 2024 [March 18th, 2024]
- Maryland fraternities petition federal judge - Baltimore Sun - March 18th, 2024 [March 18th, 2024]
- Supreme Court to debate whether White House crosses First Amendment line on social media disinformation - News-Press Now - March 18th, 2024 [March 18th, 2024]
- Broadway Actors Race Discrimination Claims Sent Back to the Underworld in the Face of Producers First Amendment ... - JD Supra - March 18th, 2024 [March 18th, 2024]
- Congress Should Give Up on Unconstitutional TikTok Bans - EFF - March 18th, 2024 [March 18th, 2024]
- U.S. House Votes in Favor of TikTok Ban Bill Amid First Amendment and Other Questions - Democracy Now! - March 18th, 2024 [March 18th, 2024]
- Review of Amicus Briefs Filed in Murthy v. Missouri Before the Supreme Court | TechPolicy.Press - Tech Policy Press - March 18th, 2024 [March 18th, 2024]
- Supreme Court defines when it's illegal for public officials to block social media critics - The Verge - March 18th, 2024 [March 18th, 2024]
- Doctor sues state of WA for his First Amendment rights - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- ACLU To Defend NRA as Supreme Court Weighs Whether New York Violated Gun Group's First Amendment Rights - The New York Sun - March 18th, 2024 [March 18th, 2024]
- U.Va. alumna settles First Amendment lawsuit against the University after her expulsion in abeyance - University of Virginia The Cavalier Daily - March 2nd, 2024 [March 2nd, 2024]
- The Oregonian/OregonLive wins First Amendment ruling in Nike documents case - OregonLive - March 2nd, 2024 [March 2nd, 2024]
- Progressive attacks on the US constitution escalate - UnHerd - March 2nd, 2024 [March 2nd, 2024]
- Artificial intelligence: Tennessee ELVIS Act threatens First Amendment - Tennessean - March 2nd, 2024 [March 2nd, 2024]
- Eighth Circuit: Fun With the First Amendment - Law.com - March 2nd, 2024 [March 2nd, 2024]