Federal appeals court finds racist slur protected under First Amendment News
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Federal appeals court finds racist slur protected under First Amendment

The US Court of Appeals for the Fourth Circuit found Tuesday that a racist slur used by a former military officer was protected speech under the First Amendment.

In November 2018, former military officer Jules Bartow was shopping at the Quantico Marine Corps Exchange when he used a racist slur that generally seemed aimed at either an African American employee or an African American man in civilian clothes. Bartow was escorted out of the store and arrested by base security officers. He was then criminally convicted for using “abusive language” in violation of Virginia Code § 18.2-416.

The Virginia Supreme Court has narrowly interpreted Virginia Code § 18.2-416 to criminalize “personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation.” This interpretation has harmonized the statute with the First Amendment, under which “abusive language” can be criminalized only if the government proves that the language had the direct tendency to cause immediate violence by the person to whom it was individually addressed.

While the court on Tuesday found that the racist slur was “abhorrent” and “undoubtedly” was “abusive language,” the government failed to prove that Bartow’s use of the slur caused immediate violence by anyone. The court stated that the Virginia statute did not criminalize the use of the word and it was “not a fighting word per se.” It was unclear to whom Bartow addressed the slur, but the court found that the government offered no evidence that any of the individuals towards whom it may have been addressed reacted violently, or that a reasonable person in their positions would have done so.

Because of this, the court reversed the conviction.