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Fourth Circuit Reverses ‘Abusive Language’ Conviction Where Government Failed to Offer Evidence That Racial Slur Tended to Cause Immediate Acts of Violence

The U.S. Court of Appeals for the Fourth Circuit reversed retired Air Force Lieutenant Colonel Jules A. Bartow’s conviction for using “abusive language” after determining the Government failed to prove his racial slur tended to cause immediate acts of violence.

Bartow, who is white, was inside the Quantico Marine Corp Exchange, and the events of his alleged crime were captured on video. However, as the video had no audio, the Government presented testimony of store employees.

Employee Cathy Johnson-Felder, who is Black, testified that she said to Bartow: “Good morning. May I help you?” Bartow, raising his voice, responded: “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?” In shock, Johnson-Felder then said: “Can I help you, sir?” To which Bartow replied: “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’s raised voice drew the attention of several people, including a white uniformed Marine Lieutenant Colonel. Bartow was seated on the floor trying on boots, and the two men gestured at one another with pointed fingers.

A Black man in civilian clothing then approached and 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 replied: “If I called her a [n****r], would she still say good morning?” It was unclear from Johnson-Felder’s testimony as to whether she believed this slur was directed at her, at the man in civilian clothes, or both. Johnson-Felder, who remained several feet from Bartow, summoned store security. Bartow was escorted from the exchange, and base security arrested him.

Bartow was charged with violating Virginia Code § 18.2-416 as assimilated by 18 U.S.C. § 13 and pleaded not guilty. He was tried before a magistrate judge. The magistrate concluded Bartow “directed [the slur] at an African American man who was talking to him,” found Bartow guilty, and fined him $500. Bartow appealed. The U.S. District Court for the Eastern District of Virginia affirmed, seeming to rely on the apparent friction between Bartow and the Marine for concluding Bartow’s use of the n-word “elicited an impending breach of the peace.” Bartow appealed to the Fourth Circuit.

The Court observed that Code § 18.2-416 provides: “If any person, 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 statute is limited to abusive language that has “a direct tendency to cause acts of violence by the person to whom, individually, [the language] is addressed.” Mercer v. Winston, 199 S.E.2d 724 (Va. 1973). Therefore, the statute criminalizes only “personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation.” Id.

This narrow construction is necessary to harmonize the statute with the First Amendment’s guarantee of freedom of speech. Hershfield v. Commonwealth, 417 S.E.2d 876 (Va. Ct. App. 1992). While “Congress shall make no law ... abridging the freedom of speech,” U.S. Const. amend. I, there are a few types of narrowly defined speech (e.g., obscenity, defamation, fighting words, fraud, incitement, and speech integral to criminal conduct) that may be restricted consistent with the First Amendment. United States v. Stevens, 559 U.S. 460 (2010).

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Supreme Court defined “fighting words” as words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” But since then, the Supreme Court has imposed a number of limitations on the “fighting words” exception to First Amendment protection. The Government may only criminally prosecute as “fighting words” speech “shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminello v. City of Chicago, 337 U.S. 1 (1949).

Any state law that punishes abusive language must limit that language to only those words “that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Texas v. Johnson, 491 U.S. 397 (1989). Fighting words must be “direct personal insults”—statements clearly “directed to the person of the hearer,” who is “actually or likely to be present.” Id. The “fighting words” exception applies only to “utterances where there was [a] likelihood that the persons addressed would make an immediate violent response.” Gooding v. Wilson, 405 U.S. 518 (1972).

In the instant case, the Court had no trouble concluding that the use of the n-word was abusive speech and most abhorrent. SeeMonteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 (9th Cir. 1998). But the Government failed to even offer evidence as to whom the term was directed, much less any evidence that there was a likelihood of a violent response. Bartow was seated on the floor trying on boots when he uttered the remark. The Court concluded that the Government’s evidence was insufficient to establish this element of the offense.

Accordingly, the Court reversed the judgment of the district court and remanded with instructions to vacate Bartow’s conviction and sentence. See: United States v. Bartow, 997 F.3d 203 (4th Cir. 2021). 

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Related legal cases

United States v. Bartow

Monteiro v. Tempe Union High Sch. Dist.



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