Fourth Circuit Overturns Conviction Of Retired Air Force Colonel For Using Racial Slur

In a major but likely controversial victory for free speech, the United States Court of Appeals for the Fourth Circuit overturned the conviction of a retired Air Force colonel for using a racial epithet at the shoe store on the Marine base at Quantico, Virginia. Jules A. Bartow, who is white, was arrested after a bizarre and disgraceful exchange with an employee, including the use of the “n word” with the African American woman. The highly offensive and repugnant language of Bartow was denounced by the court, but the unanimous panel still reversed T.S. Ellis III, Senior District Judge of the Eastern District of Virginia on First Amendment grounds.

Free speech advocates must often defend those who are despised or language that is deeply offensive. The First Amendment is not designed to protect popular speech or popular people. Such speech and such people rarely need protection. That means that we must resist attacks on free speech in cases where we find speech to be repugnant and repulsive. That is the case with retired Air Force Lieutenant Colonel Jules A. Bartow.

In November 2018, Bartow entered the Quantico Marine Corps Exchange to shop for boots. He was quickly assisted by Cathy Johnson-Felder, an African American, who innocently said “[G]ood morning. May I help you?” Bartow responded bizarrely with “If I had indigestion, diarrhea, or a headache, would you still address me as good morning?” Undeterred Johnson-Felder again asked “[C]an I help you, sir?” Bartow then responded, “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 reportedly was speaking louder and louder as he berated this employee for simply trying to help him.  That drew a white uniformed Marine lieutenant colonel who began to argue with Bartow over his disgraceful treatment of Johnson-Felder.

During this continued argument between the two men, Bartow continued to try on boots as a crowd formed.  An African-American in civilian clothes also argued with Bartow and explained 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?”

A security officer was called over and Bartow was escorted out of the door and then arrested by base security officers.

Bartow was charged under Virginia Code § 18.2-416, which reads in pertinent part:

“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 language of the statute in my view is unconstitutional due to its sweeping criminalization of any “curse or abuse” that could “provoke a breach of the peace.”  However, the appellate panel correctly noted that such laws are narrowly construed in light of controlling precedent.  This includes Virginia state court rulings that the statute must be confined to speech 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, 726 (Va. 1973). As the United States Supreme Court ruled in National Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 445 (1963), the protection of speech is maintained under the First Amendment “without regard . . . to the truth, popularity, or social utility of the ideas and beliefs [that] are offered.” National Ass’n for the Advancement of Colored People v. Button, 371 U.S. 415, 445 (1963).

Even with the Supreme Court’s allowance for the criminalization of “fighting words” in cases like Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Court has sharply abridged the application that exception. It is no longer enough to show how such speech can “inflict injury,” but must be “shown likely to produce a clear and present danger of a serious 7 substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. City of Chicago, 337 U.S. 4 (1949).  The Court has rejected the criminalization of “abusive language” that provokes a “breach of the peace” and “violent resentment” in another person. Gooding v. Wilson, 405 U.S. 518, 524 (1972).

Accordingly, the panel ruled:

Everything about Bartow’s remarks was offensive and bizarre, and their meaning was difficult to discern.  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.

In my view (as will surprise few on this blog), the decision is correct. Consider the alternative if we allow the criminalization of offensive speech.  Once we place free speech on that slippery slope, we are unlikely to find terra firma as different groups and individuals declare themselves offended and triggered by slurs and insults.

I have written for years on the effort of European countries to expand their crackdown on free speech. The criminalization of speech has expanded in countries like FranceGermany, and England though hate speech laws and speech regulation. Most concerning is the call for European style speech limits in this country.

Free speech demands bright lines. One of the greatest threats to free speech is the chilling effect caused by ambiguous or vague standards like the one contained in the Virginia statute. Every case of an obnoxious or repugnant individual invites us to make an exception or adopt some nuanced excuse for not following our principles. The temptation is particularly great in cases like this one when defending free speech can be confused with supporting bigotry.

It is never popular to fight for the free speech rights of individuals like Bartow. Indeed, after being quoted in a Washington Post article in favor of this ruling last night, I received emails denouncing me as a de facto racist, including one from an attorney condemning me for “defending bigotry under the guise of constitutional freedom.” It is a common attack on free speech advocates to claim that we defend bigotry as opposed to free speech in such cases.  The “guise of constitutional freedom” is in fact the First Amendment’s protection of unpopular speech. Indeed, Justice Thurgood Marshall famously declared in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Bartow is the price we pay for freedom of speech but it is not nearly as high of a cost as abandoning the bright line protecting us all for criminal speech codes.

Here is the opinion: United States v. Bartow

165 thoughts on “Fourth Circuit Overturns Conviction Of Retired Air Force Colonel For Using Racial Slur”

  1. The “racial slur”, evidence of diversity, perhaps rabid, is trans-social. He should apologize, the other party should accept, and they should reconcile.

  2. Toe: Protesting for a period is Constitutional. But extended rioting, looting, burning, killing damages need to be curtailed. Do you under stand “protesting and for a period”? Cite your source(s) of the 96% posting.

  3. The perpetrator/defendant malevolently abused his freedom of speech with a tangible and substantial threat and deleterious effect against another individual, and in violation of law.

    The perpetrator/defendant would have been within the parameters of his freedom of speech had he not been physically threatening in the presence of the victim.
    ___________________________________________________________________________________________________________________________________

    18 U.S. Code § 2261A – Stalking

    Whoever—
    (1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that—
    (A) places that person in reasonable fear of the death of, or serious bodily injury to—
    (i) that person;
    (ii) an immediate family member (as defined in section 115) of that person;
    (iii) a spouse or intimate partner of that person; or
    (iv) the pet, service animal, emotional support animal, or horse of that person; or
    (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or
    (2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—
    (A) places that person in reasonable fear of the death of or serious bodily injury to a person, a pet, a service animal, an emotional support animal, or a horse described in clause (i), (ii), (iii), or (iv) of paragraph (1)(A); or
    (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A),
    shall be punished as provided in section 2261(b) or section 2261B, as the case may be.

  4. Turley–“The First Amendment is not designed to protect popular speech or popular people.”
    ***
    It would be usesless if it were. Good comment on a sound decision.

  5. In brief summary: Jules is nuts; the Marine Colonel is an officer and a gentleman; SCOTUS is right (the Virginia law is unconstitutional in my view for vaguery) and the First Amendment lives to fight another day: Lose(r)-Win-Win-WIN.

    PS: Haven’t been but I’m betting there’s a special circle in Hell for people who return evil for good. As for Cathy Johnson-Felder, way to stay gracious under pressure.

    PPS: Was Jules checked for steroids?

  6. Jonathan: What is perplexing about the Bartow case is why the Air Force did not discipline or discharge Col Bartow for his bizarre and obnoxious behavior toward the Black woman in the shoe store on the Marine base. That would have sent a clear message in the ranks that racist behavior is not acceptable. But you seem to think that overturning the Colonel’s conviction was a “major victory” for “free speech”–the right for a white Air Force Colonel to call a Black person the “n”-word. There are so many unknown in this case. Was Bartow allowed to retire with, no doubt, a generous pension? If so he got away with his abusive and racist behavior. What is more perplexing is that you seem to focus your “free speech” arguments only on alleged attempts to silence the speech of conservative professors, students and now a retired Air Force Colonel while ignoring the more important threats to free speech elsewhere. For example, I think we can agree that voting is the ultimate form of “free speech”–the right of citizens to speak out on issues and candidates for public office. But in states like Georgia, Texas, Arizona and other states controlled by Republicans, as a result of the 2020 election, there is a big effort to keep people from voting or making it more difficult–particularly among Black voters. These new laws are the new form of the old “Jim Crow” laws. On the education front, a subject dear to you, Republicans are busy pushing bills to ban diversity education in KK-12. This effort began under Trump who ordered his Office of Management and Budget to stop funding of training in “critical race theory” that Trump called a “propaganda effort”. Following up on Trump’s agenda Republican legislators in Louisiana are trying to ban the teaching of what they call “divisive” concepts like white privilege and racial equity. In Rhode Island a similar bill prohibits teaching of the US as “fundamentally racist and sexist”. In Tennessee Republican legislators have advanced a bill that prohibits teachers from teaching anything about the history of racism in the US despite surveys that show students are receptive to learning about the subject. In Idaho Governor Brad Little just signed a similar bill saying the teaching the subjects of racism and white privilege undermines the “unity of the nation”. Considering the polarization of opinion in this country around race it is difficult to understand what Governor Little means by “unity”. So around the country Republicans are attempting to silence teachers–to keep them from exercising their “free speech” rights.

    As a footnote Kevin McCarthy and the Republican supporters of Trump have just ousted Liz Cheney from her leadership position in the Republican caucus. Why? Because she voted to impeach Trump and has refused to accept the lie that the 2020 election was “stolen” from Trump. Inside the House Republican caucus there are no “free speech” rights for anyone who tries to tell the truth! But you totally ignore all the more serious threats to “free speech” by Republicans in the states and in Congress. Liz Cheney can still speak out but lost her job because she spoke truth to power. That is the price you pay when you don’t accept the Republican line. And this is why you won’t address the real threats to “free speech” because you might lose your gig on FoxNews which I am sure you covet as a path to fame and fortune!

    1. I think f you review the press reporting, it was not because she voted to remove Trump from office, is was that she wouldn’t shut up about it and was view as being fractious to the party – perfectly valid reason to oust her.

      1. DM:

        “That would have sent a clear message in the ranks that racist behavior is not acceptable. But you seem to think that overturning the Colonel’s conviction was a “major victory” for “free speech”–the right for a white Air Force Colonel to call a Black person the “n”-word. ”
        ********************************

        You have the right to say that just like anyone else. Didn’t you know that? And you oughta be on your knees every night that you can.

        Keep in mind the words of Lenny Bruce to give you some insight and perspective, Dennis: “If you can’t say “[Ph]uck” you can’t say, “[Ph]uck the government.”

        Lenny used less letters, though.

        1. In reading the ex-Colonel’s comments prior to using the “n” word, I wondered if he were suffering from some sort of mental illness for which he needed treatment. The “n” word didn’t change that but I do differ with some of Turley’s conclusions.

          1. That there was no threat of potential violence which was a consideration under the law. Is Turley saying if the Colonel had offended someone bigger, stronger, and male it would then be illegal as opposed to offending a woman less likely to fight him? There was also a crowd and bystanders who might have been offended enough to fight. I wouldn’t advise going into public places shouting the “n” word under the assumption it won’t lead to violence.
          2. That he wasn’t defending bigotry. Yes, he was, he just feels the First Amendment right to free speech overrides the bigotry. The problem is that is has become more acceptable to be bigots, encouraged by the last administration, and the potential for violence is greater than even. Certain segments of America have been preparing for and hoping to spark a race war since there was an America. Making the First Amendment the biggest priority may help them get their wish.

          1. Enigma: “[Turley] wasn’t defending bigotry. Yes, he was, he just feels the First Amendment right to free speech overrides the bigotry.”
            ***
            No, he was not defending bigotry. He was clear that he did not like it. He was equally clear that the law protects words and opinions that he does not like. It is not illegal to be a bigot or racist. If it were a large part of the black population would be charged with it.

            Freedom to engage in robust exchanges of even despised opinions and ideas must be protected or no exchange of ideas will be. It’s like taking an unpleasant medicine with rude side effects but will save your life.

          2. “That he wasn’t defending bigotry. Yes, he was . . .”

            Suppose I defend your *right* to read “Lolita” by Vladimir Nabokov. And I denounce that novel as a piece of vulgar trash (which it is). You’d accuse me of defending child exploitation?!

            Someone needs to work on his thinking skills.

          3. “I wouldn’t advise going into public places shouting the “n” word under the assumption it won’t lead to violence.”

            How about BLM yelling and spray painting ‘F the Jews’?

            “encouraged by the last administration”

            Who has been encouraging BLM?

            Whether we be black, Jews or anyone else despite our feelings we need to respect freedom of speech without stretching the law so far that it becomes undefinable. That man was not causing any type of violence as despicable as his comments were.

            1. That isn’t hownthe law read, whether he was causing violence. It was whether violence was likely to occur. I happen to think based on the story the man has mental issues and there might be a defense there but that did appear to be a situation where violence could erupt, especially after a crowd formed.

              1. Enigma, Apparently you read things your own way. No violence occurred and it appeared no violence would occur. He was removed from the establishment by security.

                Anything can cause violence, even BLM. The law has to be clear and that was one of the problems for African
                Americans in the South, vague laws and vague interpretations. As one who appears to wish that African Americans not face any barriers you don’t seem to have a good understanding of the rule of law or the shoe on the other foot.

      2. It looks like another Anonymous the Stupid comments bit the dust.

        He was claiming the Big Lie, but for some reason he has never been able to tell everyone what that Big Lie is or was.

        Throughout the years many people get replaced by political parties. Democrats hated Cheney and his daughter, but they suddenly pretend she was for total free speech forgetting what happened when Cheney was VP. They are hypocrites.

        As far as Liz Cheney goes I like some things she says and don’t like other things. Trump rightfully has a lot of support and energy in the Republican Party. Liz needed to wait her time recognizing Trump’s successes while trying to change those things she didn’t like. She played Russian roulette and got the bullet.

    2. Dennis: “Jonathan: What is perplexing about the Bartow case is why the Air Force did not discipline or discharge Col Bartow for his bizarre and obnoxious behavior toward the Black woman in the shoe store on the Marine base.”
      ***
      Maybe they didn’t discharge him because he is already retired.

    3. Your comment is silly as well as being offensive. The diatribe is grounded in the insanity and utter breakdown of logic endemic to what was once denominated as TDS. It is well past time for folks to grow a backbone and call out the absurd attempts to equate the present laws in places like Georgia to the Jim Crow system once prevalent in the South and Border States. You want to argue against showing ID’s to vote, oppose laws barring the privatization of election administration, etc.? Fine, do so on the merits and in an accurate manner. Trying to equate recent laws to the systemic racism of long defunct Jim Crow practices is a flawed and rather pathetic attempt to falsely inject moral and ethical imperatives that are clearly inapposite to the situations in Georgia and other states.

      1. Jim Crow was but a phase on the timeline. It was never eliminated, it just evolved, just like Jim Crow evolved from the Black Codes that sprung up after the Civil War ended. After Jim Crow was mostly outlawed after the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968; other things took their place, especially different voter suppression laws, fueled by SCOTUS removing the preclearance laws which opened the floodgates. Georgia’s law is intended to reduce the Black vote and of youth. Florida’s is worse where three or more people gathered can be considered a felony protest at the discretion of the arresting officer and they can lose their right to vote forever. Pretending not to see what’s going on doesn’t make it not so.

      2. Warspite2,

        Perhaps if Trumpists will stop implying that people who object to Trumpism are suffering from TDS, Never Trumpers will reciprocate by ceasing to accuse Trumpists of re-enacting racist Jim Crow laws.

        1. Jeff, when you talk about racism look at what you espouse. Whites are second class citizens? Nonsense.

          Character over color is the motto of one who isn’t racist. Where do you fit. The racist category or character over color. I think we know but you will keep such an answer secret.

          SM

    4. I once collected the local police blotter adjacent to a U.S. Army base. An officer had been cited for drunk driving overnight. His removal and resignation correspondence was processed that afternoon.

    5. Dennis,

      Excellent post! If only someone could ask Turley the questions you rightly raise! And what explanation could he give to justify his looking the other way? And what will be his legacy for his forced silence?

      1. “And what will be his legacy for his forced silence?”

        Why do you say ‘forced silence’?

        1. Because he is too well educated to be suckered by Trumpism. He sees it clearly for what it is. Of course, he realizes that what Cheney has warned is absolutely true- silence in the face of the Big Lie enablers the Trump liars. I have NO doubt that he would say so privately because he has a conscience. But he reluctantly holds his tongue in public because he is not willing to risk jeopardizing his standing with the Right because he has become persona non grata on the Left. Turley is forcing himself to remain quiet against his better judgment so that he does not become a pariah to the Right.

          1. “to be suckered by Trumpism. “

            What is Trumpism?

            Unemployment rates below what is considered a normal level.
            The lowest black unemployment
            A switch from a stagnant economy to a vibrant one.
            Peace agreements in many portions of the world
            Peace agreements between Israel and many of its Arab neighbors.

            Under Biden, what have we seen.

            The economy is functioning off of Trump’s policies, soon to get worse.
            Unemployment rising.
            War in the Middle East
            Chinese and Russian advancement as seen in the Obama / Biden years.
            High gas prices.
            Racism where some races are better than ever.

            The differences are staggering, but at present too many can’t look beyond.

  7. Yes, I’m all for freedom of speech. However, Professor your discussion overlooks a key element. While Lt. Col. Bartow may have of have not been in uniform at that moment there are standards that apply to serving officers, particularly on a military installation. Bartow’s remarks are reprehensible. Moreover, the language used rises to at least Conduct Unbecoming. Lt. Col. Bartow should not have been arrested and charged in state court. Rather, Bartow should have been taken into custody, referred to his superior and the JAG for investigation for violating the UCMJ.

    Freedom of speech is sacred. However, there are limitations of speech in the military. One of the rules is that you are not permitted to say, or belong to any group which brings discredit on the military. It was a racist rant and Bartow’s choice of words in addressing a civilian certainly brings discredit on the military. Thankfully, he is out, In my view he should have been asked to resign not allowed to retire.

    1. I agree with you but Turley doesn’t make it clear if he was retired at the time of the incident or not.

      1. Kenb5602

        Turley made it very clear. In the bold headline, it says he “was retired.”

  8. Well said. It sounds as though the man was impaired in some way, either drugs, mental health, physical impairment, but that doesn’t abrogate free speech so much as free movement. Still, I like your “bright lines” argument.

  9. African-American? !/2 American? Arab? People of Brown? Albino? A white refugee? Was a n-erd involved?

  10. The same thing happens with allegations of diversity (e.g. Oprah scolding a female shopkeeper, rape-rape culture) and protection rackets. This is not a novel problem, but has been in progress for decades. A dysfunctional convergence, if only piecewise, is inevitable. You cannot abort the baby, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too. Well, you can, but it’s not a sustainable condition.

  11. Nobody has commented on the bizarre behavior of the individual. It strikes me that this individual might not have been compos mentis at the time he was making those remarks. There was no indication that this was the man’s typical behavior, but there was also no indication that the man was perhaps suffering some sort of psychotic event. Were that the case, we would have a very different situation indeed.

    1. I was wondering some along the same lines. Was this person having a bad five minutes, a jerk, or a bigot? I am not excusing the behavior by any means, but it does cause one to wonder what was going on in his head.

  12. This is interesting, I don’t disagree with the ruling. But I note that given how this was about criminalizing insulting words and why they are problematic, I am surprised Turley never mentioned recent state laws doing exactly that when it comes to protesters hurling insults at police.

    So based on this ruling Republican “anti-riot” laws criminalizing insulting police are not legally defensible. You can still hurl insults at police during a riot based on this ruling. The question would be, is an arrest considered a violent reaction?

    1. So based on this ruling Republican “anti-riot” laws criminalizing insulting police are not legally defensible. You can still hurl insults at police during a riot based on this ruling. The question would be, is an arrest considered a violent reaction?

      Hurling insults at officers during a protest is protected speech. Riots are another matter. Do these so called anti-riot laws make this distinction? Riots are a violent action deserving of a violent reaction, with or without insults.

      1. Olly, not according to Republican legislators. They consider insulting police absent a riot a criminal offense. Just because you’re within a group of people protesting and a riot is taking place a few blocks away doesn’t negate your free speech rights.

        A protest can be interpreted as a riot by police any time they want. Somebody kicks over a trash can suddenly gives police the excuse to call it a riot.

        Any insults after that are criminal according to those laws.

        This court just opined that such insults are protected speech. The only difference is a violent reaction from the person receiving it, in this case the police. All they have to do is violently arrest you in order for your insults to be deemed criminal. That’s an incentive for police to be violent to any protesters who will be beaten and charged with a crime of insulting an officer. These laws are ripe for abide by officers.

    2. I would think insulting police is unconstitutional. Because a government entity decides it is against the law, it does not mean the law or constitutional, right, or even just. My problem with this example is where is the line drawn? Unfortunately, it is one of the issues police must deal with in their job functions.

      1. In my previous post, I inadvertently left out “a law against” in front insulting the police. While I do not condone, nor find it helpful, right, good, or even just to do so, I do believe it falls under free speech. I apologize for any confusion I may have created.

  13. What I find disconcerting is that the decision was made to try him under the Virginia statute. The LtCol is still subject to the Uniform Code of Military Justice (UCMJ). There are a number of articles under which the “officer” could have been tried and probably very easily been convicted. He would probably not have been jailed but they could hit him the retirement check which would have made a long term impression on his wallet and served as a deterrent. His conviction would most likely not been appealed and justice would have served. Conduct like this is definitely “prejudicial to the good order an discipline.” Unfortunately while the civilian court decision was most likely correct, the conduct was despicable and should have been appropriately handled by the military. Hopefully the Quantico Base Commander banned the LtCol from the base’s facilities. .

    1. Mr. Bartow is a retired Air Force colonel. Yes, he’s subject to base regulations, but not the UCMJ unless he was acting in an official capacity of some sort.

      1. In some serious cases a Retired Military Officer or Enlisted Person can be recalled to Active Duty and be Courtmartialed.

        That was probably not a consideration for the actual misconduct seen in this case thus the Civilian remedy would be the correct venue.

  14. As hard as this is to say, this is a win. You have to defend the speech you hate the most to protect the speech you like. I wonder if the retired Colonel can lose his privileges to the base store or other benefits due to military law.

    1. Three cheers. Absolutely. The singular American failure has been the judicial branch, with emphasis on the Supreme Court, all members of which are sworn to support the Constitution, including the “manifest tenor” of the Constitution, and most of whom should have long ago been impeached and convicted for usurpation, dereliction and gross negligence, if not treason, as being in league with enemies of the U.S.
      ______________________________________________________________________________________________________________________________________________________________

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton
      _________________

      The problem, in this case, is the proximity and the looming, nearly physical assault with deliberate infliction of emotional distress, making the issue not only that of free speech but of psychological battery.

  15. “Indeed, after being quoted in a Washington Post article in favor of this ruling last night, I received emails denouncing me as a de facto racist, including one an attorney condemning me for “defending bigotry under the guise of constitutional freedom.””

    It seems this is a case where you can be doing both concurrently, Turley. Not saying you’re racist, but here the two seemingly polarized threads converge. I remember in the 80’s when the ACLU was defending the ‘rights’ of the Klan to march in a large holiday parade — which this case reminds me of. I think the intersection of the two probably is entwined by the hesitance of, like you cited sort of, white culture’s resistance of holding epithets directed at darker races as *not* being violent expressions. Taken in the light of American history there is a fairly strong correlation between whites uttering derogatory racial language and violence following not that long thereafter (not withstanding said white culture’s appropriation of the ‘n’ word by ventures of their offspring deep into rap culture).

    So while this my be all legal eagle in a strictly reductionist way, it’s still despicable and disgusting to defend it on some level. Depends where you want to put your energy, essentially. It’s a choice…, constructive side of civilation, or destructive? That’s probably where the tactic of reductionism would prove more useful.

    EB

    1. “So while this my be all legal eagle in a strictly reductionist way, it’s still despicable and disgusting to defend it on some level. Depends where you want to put your energy, essentially. It’s a choice…, constructive side of civilation, or destructive?

      Is it disgusting to defend it? Should lawyers put their energies elsewhere? Is such defense destructive?

      Bug, you seem to answer yes to all three questions, but you are wrong 3 times and worse is that what you advocate is more destructive than defending the worst of the worst.

      Take note of what Turley says: “Free speech demands bright lines.” Without the bright lines, we inhibit all speech both good and bad. I prefer to look at the lawyer’s defense as constructive because it forces us to use bright lines when creating law or prosecuting lawbreakers.

      Without bright lines, there is the threat of repressive government, something that in your writings you seem to favor.

      SM

      1. Thanks, Allan. Always good to get a misinformed viewpoint on matters since there is so much misinformation and lack of understanding to reckoned with. You’re my ‘go to’ on it.

        EB

    2. Sometimes you have defend what you personally find revolting. That is criminal law at its base. Does anyone really think a lawyer defending a mass murderer thinks highly of their client especially if the client is caught on tape or live in the act? This is when it is the hardest to do your best.

      If you think this person should have been prosecuted and not overturned, that is fine. Let me ask this question, if the roles were reversed and the sales person was doing the cursing, would you still feel that way?

      When I was in my tween years, I remember returning servicemen from Vietnam being called baby killers in public. Should those people faced arrest?

      If someone calls you a racist, is that ok, even if you are not and it makes your blood boil?

      This is hard stuff and that is why it is so important to defend even the worst offenders.

      1. Where did I say not to defend it? I pointed out it’s a choice, not a pretty choice, but a choice. Didn’t say not to do it.

        EB

        1. Then why call someone doing their job despicable? Why denigrate a person for standing up for values? You do not have to agree with a person viewpoint to defend it.

          As for epithets, do you hold the same view when the shoe is on the other foot as the one you espoused?

  16. I don’t disagree with this opinion when it comes to government censorship. But what you did not mention was the fact that the store owner would have been within his rights to throw Bartow out of his shop! Similarly, Facebook as a private company may throw individuals off its platform who violate its house rules.

    You say that freedom of speech “demands bright lines.” I take it then that you are against laws prohibiting obscenity unless you have a better definition than the Justice who said that he “knows it when he sees it.”

    There are no such bright lines. Accordingly, the courts must use their judgement, and in close cases, I would agree that they should err on the side of permitting more speech than less. Because the courts are constitutionally unable to prohibit hate speech (for good reason), it falls upon citizens and private corporations to silence hateful speech and outright lies by using time-honored conservative means: shaming, shunning, ostracizing and boycotting.

    1. We’re past that point. Free speech is considered the enemy now, and my bright line is crossed at censorship. Tech giants like Twitter and Facebook are responding to government threats that will destroy their business model. That’s censorship too, and it gets a response from me. Lucky for us we have appellate courts that follow the Constitution, but Americans can’t outsource the job of censoring us to “citizens and private corporations”. For me, the fight is for every American to decide whether certain speech is too dangerous to be heard, or preserved. I reserve that liberty, at least until the People enact Constitutional law that assigns that job to a “higher authority”. We’re not there now, not even close.

    2. You make an excellent point: the manager should have escorted Mr. Bartow off the premises. In fact, I’m surprised the clerk didn’t excuse herself and go get the manager to deal with Mr. Bartow – although, I’m sure she was trying her best to be polite. This is rather like a libel case where the jury finds for the plaintiff and awards damages of a penny. The moral victory is the clerk’s.

    3. Jeff writes: ” But what you did not mention was the fact that the store owner would have been within his rights to throw Bartow out of his shop!”

      Turley, however, stated, “A security officer was called over and Bartow was escorted out of the door and then arrested by base security officers.”

      Jeff, when hate clouds one’s vision too much they fail to see what is in front of their face. Your desire at every corner to demean Turley is reprehensible and stupid. It is now backfiring on you.

      1. Jonathan occasionally updates his postings. Maybe he updated the article after Jeff Silberman posted his comment at 7:25 AM.

        Perhaps, “hate” is clouding your own vision.

        1. Anonymous the Stupid, you are showing how you stretch the truth. Anything is possible so you can prove doubt that the sun won’t rise tomorrow. However in the real world you are acting Stupid. The blog posting by Turley wouldn’t have made much sense if the man was never removed from the store and arrested.

  17. Marines must be getting far more Woke than their tradition of being fighters for freedom and maintaining their honor than they used to be.

    Notice it was a uniformed Marine Officer that interceded on behalf of the victim….the Exchange Employee.

    Regrettably, that Marine did not himself escort the Air Force Colonel out the front door….with a firm kick in the seat of his pants as he was launched back outside for his despicable conduct.

    That is how abusing your Right to Free Speech….and this certainly was without a doubt….just that….abuse of Free Speech and of a Woman merely trying to do her job and assist shoppers.

    Had the Marine done as other Marines have done down through the Centuries….this would have had a much better outcome.

    Bad Manners need correcting on the spot.

  18. I am surprised that Judge TS Ellis upheld the conviction. He is normally a very reasonable/astute guy. Apparently letting emotion enter into his rulings now.

    1. I surmise the judge was fearful of the mob. JT is fearless, a rarity in this culture.

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