In a victory for freedom of speech, a federal appeals court threw out the conviction of a white retired Air Force lieutenant colonel who used the N-word while berating a store employee who asked whether he needed any help, reports the ABA Journal.
“If I called her a n- – – -r, would she still say good morning?” the retired officer reportedly said to the black employee, in a bizarre rant about gender labels and sex stereotypes. He later 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 U.S. Circuit Court of Appeals at Richmond, Va., ruled on May 11 that Jules A. Bartow’s speech was protected by the First Amendment, and he could not face conviction for using “abusive language.”
The First Amendment allows for a conviction only when words have a direct potential to cause immediate acts of violence by the person to whom they are addressed, said the appeals court. Given the facts of the case, this “fighting words” exception to free speech protection did not apply, the court decided.
“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.”
