The explosion of a retired Air Force officer against a store worker was ugly, bizarre and racist, but still protected by free speech, a federal court said on Tuesday.

The ruling overturned a verdict that Lt. Col. Jules A. Bartow was guilty under Virginia’s Heavy Language Act, which says “fighting words” are not protected speech. On appeal, the verdict of a magistrate was confirmed in 2019 by a district court.

The confrontation took place in November 2018 as Bartow was shopping for boots at the Quantico Marine Corps Exchange.

Witnesses said he immediately went on the offensive when approached by Cathy Johnson-Felder, a black sales associate. They gave this report of the exchange:

Johnson-Felder: “Hello. Can I help you?”

Bartow: “If I had indigestion, diarrhea, or a headache, would you still say hello to me?”

Johnson-Felder: “Can I help you, sir?”

Bartow: “I’m not a gentleman – I’m not a man, I’m not a woman, if I had a vagina, would you still call me sir?”

Her high voice caught the attention of several other people. One of them, a black civilian, told Bartow that “the reason [Exchange employees] say “sir” or “madam”, it is because you are buying goods on a military installation. “

To which Bartow replied: “If I called her a [n-word], would she still say hello?

A store security guard arrived during a “heated conversation” between Bartow and a naval officer in a white uniform. She escorted Bartow out of the store and he was arrested by base security guards.

The ruling on Tuesday by a three-judge panel of the Fourth Circuit Court of Appeals said that while it’s hard to think of a more heinous English term … even the most egregious racial insult is not a word fighter in itself. “

Virginia’s law is narrowly constructed to criminalize only “personal, face-to-face, abusive and insulting language capable of provoking a backlash and retaliation,” and Bartow’s comment did not meet the latter part of that test, according to decision.

Given the Supreme Court’s strict interpretation of First Amendment protections, the ruling concluded: “We must respect these limits, even if it means, as it is here, that shameful speech escapes the judgment. penalty sanction.”

The district court was tasked with overturning Bartow’s conviction and sentence. He had been fined $ 500.