Abusive Racial Language Didn’t Rise To “Fighting Words” Required For Conviction

US v. Bartow: Bartow is a retired Air Force Colonel who was shopping for boots in the Quantico Marine Corps Exchange. He had a series of aggressive, confrontational conversations with an employee and some other shoppers, culminating with a question using the “N-word.” Although the employee was “taken aback” and others observed a “heated conversation” between the “very animated” Bartow and another customer (there was finger pointing) there was never any violence. The store security officer escorted Bartow out of the store (without incident, apparently) and he was ultimately charged with using “abusive language” under a Virginia statute (made applicable under the Assimilative Crimes Act). He was convicted by a magistrate, who imposed the maximum penalty ($500 fine), with the district court affirming, “seem[ing] to rely on the apparent friction between the white lieutenant colonel and Bartow as a basis for concluding Bartow’s use of the n-word ‘elicited an impending breach of the peace.’”

On appeal, the Fourth Circuit reversed its conviction. The court examined, at length, the Supreme Court’s evolving doctrine on “fighting words” and the way that Virginia courts had incorporated that into their application of the abusive language statute. While noting that Bartow’s speech “constituted extremely abusive language,” the Virginia statute did not (and could not) “criminalize the mere statement of this abhorrent word.” Instead, the Government had to prove that Bartow “individually addressed” the language at issue and that the language was “likely to provoke an immediate violent reaction by that person or a reasonable person in that individual’s position.” There was no evidence of that in this case.