court lieutenant colonel bartow was convicted under a virgin is abusive language statute for posing a series of rhetorical questions during an argument that mostly took place while the ten colonel bartow is on his knees trying out boots conviction is contrary to both virginia law and the st amendment of the united states constitution and as such should be overturned for at least three related reasons st lieutenant colonel bartos mode of expression was rhetorical questioning and therefore constituted protected speech and not fighting words punishing his rhetorical speech because he used in offensive words while posing to torkel question is an unconstitutional viewpoint based restriction on a speech and does not fall within the limited biting words exception like a self styled modern day socrates he sought to challenge generally accepted norms are a series of rhetorical you talk about the merits i'd like to understand what's the proper standard by which we review this appeal i think your colleagues suggest we should defer to factual findings and i think you know you've argued to the contrary i think it's important for us to understand exactly what our standard of review is can you address that st place yes your honor and we would agree that he just heard who he directed his words to at trial the mattress or judge found that he had directed the n word towards one specific gentleman i think that's a finding of fact and  records yes your honor i would i would agree with that and in justice o'connor concurrence she pointed to whether or not words were fighting words is a classic example about though i grant you that  characterize all this is as merely a rhetorical question is by a modern day socrates is the case then that as long as you frame whatever you are saying in the form of  question it can never amount to fighting words your honor we would not take that position i think we we would concede that you could frame a rhetorical question where it had no value other than to be directly insulting or abusive to the person to whom it's addressed so for example your honor if i was speaking to somebody and i said what are you some sort of idiot then there's no there's no of server and ma'am which i guess that he i i'm i understand your argument about this sir and the man but he can't it appears that he came in there almost looking for a fight because he didn't bring up the thing about the server ma'am intil his nd cell though in response to good morning he went off with a rhetorical  part sitting down trying on boots but he he wasn't always sitting down for a numbers he stood up he pointed at people he got aggressive in close with other the other people in the store but about that fact he did believe that he was being harassed and i think the video record shows your honor of the the white male lieutenant colonel who is the st intervener in the conversation his body language it and you take the position that those are in that but no those are appropriate examples of fighting words yes your honor this is not a facial challenge to the statute as that would not be a fighting word but if you were in the middle of a heated conversation to point your finger at somebody and say fuck you with no with no other rhetorical point no other rhetorical on kent then  healthiest yes your honor and certainly we wouldn't say that there's never a context where the n word could be fighting words or well the presence of the n word is what makes this case complicated right i agree i doubt there would be an attempt to find a crime committed so you have to deal with i agree or i agree with you your honor and i think there's no question that the n word was honor i would agree with that except i would add to that the end would have to be used in a way that was intended to be insulting or abusive and not in a way that was intending to convey  directed to violence it's still protected speech i don't get where you come up with his intent matters itself that it doesn't it's not necessary in that case to consider any st amendment issue so a lot of us didn't consider the st amendment so what's your next point your honor i would  still think that as a basic principle of criminal law the i want to attend the wrongful conduct and hear what makes the use of any word wrongful  offensive the direct and solves or abuse that could result in violence but nd your honor i think that there's a distinction between fighting words and threats where subversive speech is inherently likely to cause a violent reaction in audience if somebody is making an unpopular point they might and in this case i think there's no question about which i'm a colonel partow is making an unpopular  and johnson that inquiry is objective not subjective subjective been ten doesn't matter and the big genius supreme court said the same inmarsat or your honor i think in those speech towards the addressee and there's no there's no other rhetorical point being made other than to insult and to abuse the target of the speech but it can also you're i mean and maybe i'm just belaboring what what judge m n likely to incite the average person to breach the pace and you're at it seems to me like you're adding an additional inquiry we need to make about what was in the mind of the speaker at the time and i don't recall seeing that years the supreme court's decision in chaplin skid the stood for the proposition that someone cannot escalate a confrontation using abusive language to the very threshold of violence and escape potential prosecution for breach of the peace to it's always a totality analysis and the case is immaterial always look to both the circumstances and whether or not the slur or word itself is abusive here i don't take my friend on the other side to contest the slur constitutes abuse of language so then that leads to the circumstances and as i parse out the record judgments there are seven circumstances here that support the magistrate judge as factual by the st the defendant opens this interaction with miss johnson felder with aggressive vulgar questions nd well get i think that if that's not so clear there are very odd question under it seems like this guy has the mental problems well the still very odd now i understand your are i do think the nd factor here is the magistrate judge made a factual finding we think supportively that just as your were threatening included hands on his hips followed by pointing at the store clerk directly from only a few feet away there's a volume miss job to you do you really think that the threatening to ms johnson felger earth threatening to anybody m e r i mean i watched that videotape a number of times as i'm sure you have but and you know and lots of it repulses me but i have a little concern that you're saying putting hands on your hips and doing the hand gestures he did create threat i mean quite frankly i'm i'm better not go home at night because i get that a lot at my house and i don't think that i never took it taken it that way i totally understand judge quite a bomb and i want to be really clear my argument not that any of the things i'm trying to tick through in isolation it suffice my argument and perhaps this goes to your initial question your honor you asked about the standard of review so yes or in our view because we think this is simultaneously an as applied challenge and in effect a rule twenty nine dollars challenge because the virginia supreme court in mercer collapsed to the statute to a  language was abusive and not rhetorical and directed at both miss johnson felder and the african americans one billion bystander is that in any way clear error and are sometimes no having said all that do you think now i think is helpful here which is there's a section where the supreme court says to the extent that there is clear air review or factual find that that bears on that the the breach is the piece and does and i realize it's not a individual how any one individual would react to it as we look at bad but does it matter at all that none of the people in the vicinity here retaliated in a way that breached the base does that matter at all my answer your honor is that w correct although i think on the other side of the spectrum well how soon did the security guards show up just that for my reading of the video we know that the slower is between the time that uniform shot down and the african american civilian arrived on the scene and the time missed the key arrived on the scene as the security guard my reading is that that is between three minutes and three and a half minutes into the interaction so fairly soon in the eight minute video yeah but enough time for people to be alarmed and scared that's correct judgement actually to your point about how nobody sort of on the video seems to visibly react i would say t here i would say two things one is miss johnson felt or was very clear that the use of the slower is what prompted her to call for security so she believed that that's where escalated the situation to the point where she wanted intervention and the but is that but that's is that let me just think because i think the test is whether it would incite the recipient of the speech to retaliate in a way that would breach the peace so i'm having trouble how you are saying that her response which is admirable is consistent with the standard you have to meet jen what what here is someone who is no doubt insulted as well she should be and rather than go up in slapping which might have been understandable dispositive here and it is she would quired to actually respond and rise to the incitement in a border were it to be fighting words and then she was in a situation where it could have been danger it that this person did seem to have some challenges and the appellant i mean so it could have been dangerous for her to rise to that occasion in any way other than she did i agree there's absolutely no requirement that any of the water th drew a crowd including the lieutenant colonel who himself escalated the situation by stepping towards him and putting his finger in his face five the defendant's rejection of deescalation efforts when the african american civilian and the uniformed captain arrived on the scene they both tried to calm things down the defendant's words are i'm not going anywhere six the fact that and this goes back to my dialogue which was quite a bomb about it's evidence but it's not so positive the fact that immediately upon hearing the  went for security because she believed security's intervention was necessary and then seven i do think it's relevant that the tension level remains high even after the slower is used because i think it is evidence of what was happening at the moment the seven what about the fact in terms of the to tell it is circumstances that he did continue to try on the boot see he was sitting down some of the time standing up some of the time but he continued to carry on his business trying on the boot what about that i think it's relevant but i don't think it leads to the conclusion of the magistrate court committed clear error and i would phrase this in terms of joplin's q itself so chaplaincy favorably quote the new hampshire state court which said sort of disengaged stepped back lowered the temperature and said i am not trying to provoke a confrontation i simply have a political view that would be one hundred percent constitutionally protected but on all the reading of the record reasonable person would react with violence i agree i agree and the government submission is in the district court on the st round of appeal and this appears a j the last prong is using violent abusive language under circumstances reasonably calculated to provoke a p g p s and if we are going to the district court i think that applies to the lieutenant colonel the lieutenant colonel intervened here to protect the protect the victim and on those facts we think it's also reasonable to believe that he might have reacted with violence given all the circles yet but that they can't so you keep using the light he might have or he could have and i grant you that all day long but what what what you're required to show it is that it is likely which is more probable than not that someone would breach the peace which is another way of saying and break the law so it seems to me that's a pretty high standard in that i guess it is because we're talking about the st amendment and so when you kind of in your responses lower the standard probably not intentionally i know this is made up play gotcha with that but use words like could or might i think that snot what we're supposed to be looking at just what a bomb you are one hundred percent correct and i apologize for the position i think the question is in light of all the circumstances what it could the defendant's face to face abusive and insulting language likely provoke violent reaction or retaliation from any of the three people i mentioned according that directly from us or that is correct that is the question i agree  thank you thank you or thank you your honor i'd like to say a few things response first we are not contesting the record what is in the testimony is so well i agree that there are circumstances where in person testimony is entitled to greater weight we're not we're not contesting what was said and in fact i would point to a teen where  she said sir or ma'am is because you are purchasing merchandise at a military installation and there's a common courtesy you associate say it's her ma'am to their customers and then at that moment he responds by saying if i called her and word of which she still say good morning and your honor i think that exchange is the key to understanding what what he was saying and i think it's also the key to understanding that this didn't escalate the situation this was meant to try to put into his his words to communicate just how strongly he felt and your honor i would smith up there's no st amendment requirement that a speaker not be offensive or that a speaker be active in communicating or communicating or conveying their message he was struggling to convey just how strongly he felt about the word and that is and that leads me to the next point i'd want to make which is that well of the measure such found that his speech generally was directed at a number of different people at the top of j fifty two dollars she found that the example the white lieutenant colonels clear anger and the video is relevant to being for here and i think the question a question that was not answered out trial is not whether any of the bystanders would have been justified in throwing a punch after he said about but whether the the specific gentleman to whom he directed his words would have been justified or would have been reasonably likely to respond with about this i actually completely i disagree that there's any confusion he has that he is perhaps ranting but he is ranting about being addressed as sir but i mean he didn't get upset honour's i would say that speech is protected and does not fall within the narrow fighting words exception to the st amendment unless it isn't tended to threatened the african american it's directed at a white person and i thought that in of itself you were suggesting meant that it could it could be fighting words well your honor i think it would it would depend on how the the word was being used white to the white person i don't think but you could never find that the n word directed a white person was a fighting word but without more then i would ok here is bad  it would be and where it would not be yes your honor in the context of say those two white people are having a heated dispute and the person says there's plenty of language you're you're just a f ing n word that perhaps could be an example of a funny word but it would depend on the address sees reasonable reaction and not on the the crowds even if people were more likely to overhear about exchange