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Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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Two cliches — one commercial, one political — often taken at face value today go down in flames.

“The customer is always right.”

“Hate speech is not protected free speech.”

Readers can thank retired military officer Jules Bartow for their repudiation.

As a customer, Bartow was way out of line. As a speaker, his conduct was egregious, not criminal.

History has shown that it’s frequently ignoble actors who help establish the outer limits of our constitutional rights. That’s the case with Bartow.

His offensive demeanor led to his arrest and conviction in Virginia on charges of breaching the peace by spoken words. Barrow’s successful appeal won him an infamous seat in the freedom-of-speech hall of fame.

Some might call it a hall of shame, and they would have a point. But the law, as set forth in a recent federal appeals court decision, is clear.

“The ugly racial epithet used by Bartow undoubtedly constituted extremely ‘abusive’ language. But because the government failed to prove (or even offer evidence) that Barrow’s use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand,” wrote Justice Diana Gribbon Motz.

It’s easy to describe, but difficult to explain, what happened.

As the court described events, Bartow was shopping for boots in November 2018 at the Quantico Marine Corps Exchange.

A Black female employee approached and said, “Good morning. May I help you?”

According to testimony, Bartow replied, “If I had indigestion, diarrhea or a headache, would you still address me as good morning?”

Taken aback, the store employee replied, “Can I help you, sir?”

Bartow 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’s animated responses drew other customers’ attention, including that of a Black man who explained that the clerk used the word “sir” because the store is on a military base.

Bartow responded, “If I called her a (racial epithet), would she still say ‘Good morning’?”

Another customer — a White lieutenant colonel — then engaged in an animated conversation with Bartow even as Bartow sat down to try on boots.

Base security officers ultimately arrested Bartow, setting the stage for his trial and conviction.

The facts represent a classic case of the attempted criminalization of offensive speech even though the U.S. Supreme Court has written that the First Amendment of the U.S. Constitution protects speech without regard “to the truth, popularity or social utility of the ideas and beliefs that are offered.”

There are a few exceptions to this broad-based rule, one of which is the use of “fighting words.”

But legally actionable fighting words are limited to “personal insults” aimed at a specific individual that “have a direct tendency” to provoke a violent response from that individual.

Bartow’s ugly language did not meet the legal definition of fighting words.

The appeals court described Bartow’s language as offensive and “inextricably linked with prejudice and hostility toward” Black people.

But video without sound showed no sign of impending violence.

Some people watched. Some continued to shop. Some engaged in conversation with Bartow while he sat “on the floor trying on shoes.”

“Indeed, Bartow’s ‘mode of speech’ — a series of rhetorical questions while trying on shoes — did not provoke anyone,” the court noted.

Because the U.S. Constitution “places considerable limits on the criminalization of speech,” the court found Bartow’s language offensive but not criminal.

So what was up with Bartow? There’s no explanation.

A footnote in the court’s decision stated that “Bartow suggests in his briefs that his remarks demonstrate his discomfort with gender labels and sex stereotypes.” He acknowledged it can be “offensive and degrading” for a Black person to be a target of a racial slur while asserting it can be equally degrading for a transgender person “to be misgendered.”

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-393-8251.

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