Shiloh Hendrix’s conviction can’t be squared with the First Amendment

A few years ago, the Supreme Court reaffirmed a basic free speech principle: “the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided and likely to cause anguish or incalculable grief.”

Yet that principle appears to have been cast aside in the prosecution and conviction of a woman who hurled racial slurs in a public park.

In April of last year, Shiloh Hendrix was at a playground in a public park in Rochester, Minnesota, with her toddler when an eight-year-old black boy allegedly took an applesauce pouch from her diaper bag. Hendrix allegedly chased after the child, repeatedly calling him “nigger,” before retrieving the pouch. 

The incident drew the attention of a bystander, Sharmake Omar, who began recording Hendrix on his phone. In the video, Omar confronts Hendrix about her language. She responds that it’s “none of your fucking business” and begins walking away. Omar, who is also black, then challenges her to repeat the slur. Hendrix turns around and says, “Fuck you, nigger. Nigger, nigger, nigger.” After the two exchange some more words, the encounter ends with Omar saying, “OK, we’ll see about that, what the internet has to say about you.” 

The case is a reminder that determinations about what speech is too emotionally charged or offensive to allow change from person to person and generation to generation. It would be a grave mistake to give those subjective judgments the force of law. 

Indeed, the video went viral. But Hendrix faced more than public condemnation (and support). Rochester prosecutors charged her with three counts of disorderly conduct, two of which proceeded to trial. Yesterday, the jury acquitted Hendrix on the count involving the child but convicted her on the count arising from her interaction with Omar. The judge immediately sentenced her to probation, community service, and a $1,000 fine.

Unless the trial record contains some critical fact absent from public reporting, that conviction cannot stand under the First Amendment.

The video merely shows a heated verbal exchange between Hendrix and Omar. No threats. No violence. Nothing beyond words. However much offense they caused, that simply does not justify the government imprisoning, fining, or otherwise punishing the speaker. A public argument does not become a crime because a speaker used a particular word.

The jury reportedly was instructed on the quaint “fighting words” doctrine. Although still technically an exception to the First Amendment, the Supreme Court recently threw cold water on “fighting words,” observing it “has not upheld a conviction under the fighting-words doctrine in 80 years.” That case was 1942’s Chaplinsky v. New Hampshire, involving a man who had choice words for a police officer. It’s a good thing the fighting-words exception has been sharply limited and arguably erased by the Court’s subsequent speech-protective decisions. Violent individuals shouldn’t have a veto over what others can say.

Even if the “fighting words” doctrine still has a pulse, it’s very hard to see how it applies to Hendrix’s comments. The doctrine is, at most, confined to a tiny category of face-to-face insults that, under the circumstances, are likely to provoke an immediate violent reaction. But courts have made clear that even the most taboo racial slurs are not fighting words per se. And, as the video shows, Omar solicited Hendrix — who was walking away while carrying her child — to repeat the slur so he could capture it on video and shame her. She did so and then continued walking away. Nothing about the interaction suggests Hendrix’s words were likely to provoke an immediate violent response.

However one feels about what Hendrix said, the proper response to objectionable speech is counterspeech — of which there was plenty after the video went viral — or to simply ignore it or walk away. But allowing imposition of criminal punishment erodes the important limits on the government’s power to police speech. If officials could punish people for speech based on how others might react, there would be no principled stopping point. A pro-Palestinian activist chanting, “From the river to the sea.” An Israel supporter calling that activist a “terrorist sympathizer.” Someone calling a preacher a “bigot” or referring to a transgender woman as a man. All could suddenly face prison time if someone else feels offended or might throw a punch in response.

Chaplinsky itself illustrates the point. The defendant was convicted of an offense in the vein of disorderly conduct for calling a police officer a “God damned racketeer” and a “damned fascist” — speech that today is unquestionably protected. The case is a reminder that determinations about what speech is too emotionally charged or offensive to allow change from person to person and generation to generation. It would be a grave mistake to give those subjective judgments the force of law. 

Yes, that means we must sometimes tolerate speech we find repugnant. But that’s the only way to ensure the speech we value remains free.