The last time I wrote about this Minnesota ethics train wreck more than a year ago, I began with “Yecchh! Pooey!” I would now like to add, “Ick! Barf!” I hate this story.
The latest revolting development is that a Minnesota jury convicted Shiloh Hendrix of a single charge of misdemeanor disorderly conduct last week for repeatedly calling a black man who confronted and filmed her at a Rochester playground “nigger.” Hendrix also directed the slur at an 8-year-old black boy who had been going through her purse.
Because Hendrix’s speech was the conduct underlying the disorderly conduct charge according toMinnesota law, we have a controversy over whether using “nigger” as this awful woman did falls within the narrow “fighting words” exception to speech protected under the First Amendment.
The six-person jury returned its verdict after four days of testimony in Olmsted County District Court, finding Hendrix, 37, guilty on the count involving using “nigger” in her exchanges with videographer Sharmake Omar. She was not found guilty on the count involving the child. The full sentence: a stayed 90-day jail sentence, supervised probation, 200 hours of community service and a $1,000 fine.
We are told Hendrix did not speak before sentencing. Good.
Ethics Alarms 
“…and there is no conceivable benefit to society of the courts not labeling doing so unprotected by the First Amendment.” Jack, I don’t mind you using the N word rhetorically, but triple negatives like this are a menace to society.
Guilty as charged. (I’m sick, remember…)
No worries. Your IDEAS were great.
Indeed. The dreaded triple negative causes me existential pain and mental confusion.
jvb
Using words commonly or culturally known as epithets and, somehow, expecting events not to escalate is just plain stupid. If certain people of the same group use a word differently the intention is usually entirely different.
Calling a black person that word is clearly an epithet and fighting words.
She may have deserved worse than her sentence. What an idiot.
Are you submitting that African Americans are reflexively incapable of restraining themselves or their emotions upon hear the forbidden word?
No. I am saying if you say inflammatory things you will eventually find people who are less in control of themselves and poor outcomes result.
but you dont find saltine crakers who resort to fists because of the word which they are forbidden to employ.
That sounded alot better in my mind.
But you don’t find saltine crackers resorting to fists because some other saltine used the forbidden word to insult a slice of whole wheat –
Thus spake the Boulevard Rye on Rye.
A couple of days ago, I rewatched the video of the playground incident that led to this verdict. When the incident is considered in its entirety, I can’t see any way that Hendrix’s “fighting words” disorderly conduct conviction survives on appeal.
Hendrix didn’t walk up to Omar and start taunting him. He approached her–with the camera on his phone already recording–and asked if she’d have the balls to say the same thing she’d said to the little boy. And then he kept following her as she walked away.
Omar quite literally asked for it. Under the circumstances, Hendrix’s slur-and-middle-finger response to him cannot fairly be described as incitement/fighting words/anywhere close to criminal.
Exactly right. Not that it matters, I don’t know that it’s been established that she even said it to the kid (who happened to have an ankle monitor, by the way, but not necessarily due to criminal behavior). Hendrix never admitted to it, the kid didn’t corroborate it, and the only evidence is Omar’s claim and he wasn’t even present for the trial. And, oh yeah, he was charged with criminal sexual misconduct against a 16 year old in 2022. Possibly irrelevant, but what is a sex offender doing at a playground? Sorry, I’m not taking Omar’s word for anything.
Regarding her saying “nigger” on camera (that’s uncontested): as you wrote, Omar literally asked – or baited – her into saying it on camera. Also, she wasn’t the only one with a “gofundme” (or something equivalent). Both Omar and the kid’s family set up multiple and raised around $400k. Sorry, the whole affair feels more like a Somali scam than anything to me.
While I think I understand the the rationale, I still disagree. An insult, no matter how cruelly intended or loudly shouted, is not itself a threat to anyone’s life, liberty, or property. A mere “invitation to fisticuffs” can still be declined, however much one might want to accept it. This of course, is different from an actual threat of violence, or an act of slander or libel.
Good point. The “fighting words” doctrine needs to be overturned, as it (1) gives the angriest person in the room veto power over somebody else’s words; and (2) limits First Amendment rights according to another person’s outrage. What’s the societal benefit to either of those things?
Yeah, but if you call the U.S.S. Enterprise “a garbage scow” you’re going to get hurt. That’s unforgivable in the 23rd century. Take it from me, Kawai, aka pt109. I know from seeing it!
The “fighting words” concept should have died with the Code Duello, and I thought it mostly had (perhaps belatedly). It sort of sounds like R. A. V. v. City of St. Paul only allows very narrow exceptions that don’t include merely someone taking offense. Adults should be able to control their violent urges, and that’s usually required except in defense against actual physical harm. Most do this. That a few persons can’t or won’t control themselves shouldn’t be rationalized or pandered to. We have too much of that already.
Sometimes I think this blog reduces issues to legal arguments.
Ethically speaking, none of this happens if the first adult, Hendrix, simply confronts the child correctly instead of including a racial epithet.
I agree she has the right to call them as she sees them, but she should expect a reaction, especially if a related adult overhears the slur.
One unethical act begat another. As a kid might say…she started it.
It’s a legal argument because it was taken to court based on a legal claim…
This blog time and again recognizes the principle that a lot of ethical problems would be resolved with a simple conversation.
If you read the article on this mess from last year, I was not aware at that time that there were any legal procedures involved at all, and if it had been up to me, there wouldn’t have been. However, if there is an established “fighting words” exception to the first Amendment, and there is, calling a black person a “nigger” in a context where it cannot be taken as a joke, ironic or satirical has to be “fighting words” because it that isn’t, what would be?
when the “nigger” goes up to someone and taunts them, I disagree. Once this became an issue for the criminal court, more than ethics is involved. I also hope it goes to the Supreme Court and is overturned and a useful decision is created
I really don’t care what SCOTUS concludes, but the issue needs to be settled in a well-written, well-researched, definitive majority opinion.
6-3
5-4
I would put $5 on 8-1 in favor of 1A with a predictable dissent.
This is a legal ethics blog, after all. Much has been said about the ethics of the various participants, but only one had the legal system brought to bear on her solely because of what she said.
The ethical issue here is easy, though. What happened here clearly violates the Golden Rule on all sides. The kid at nine should know not to steal, the mom should know not to cuss him out, the man should have known not to provoke, the mom should have known not to let him, and those who donated should know not to support jerks. The only thing left here is to determine what should happen under the law.
I suppose if you wanted to get it to it, we could focus on why this happened at all? I know Jack covered it a while back, but without looking, I’ll add my two cents. The first is because shame and guilt largely no longer work. When Paul writes to the Church in Corinth that they should put out the offender who is doing what the pagans wouldn’t do, he hopes that some time apart will make the man want to repent and then come back to the community (2 Corinthians indicates this is what happens). The reason this would never work today is that you can always find validation in what you do, since you have access to the whole world at your fingertips.
The second is because we can’t even get on the same page about who, what, and when it is okay to use the “N” word or words that sound like it. Yes, I know the word, you know the word, and I’m still not going to use it, because the fact that it can be used against me, even if I just type it to explain context, is proof of my point.
In August 2020, Professor Greg Patton at the University of Southern California (USC) faced disciplinary action after using the Chinese filler word “nèi ge” (那个) to explain speech patterns.
In 2019, Laurie Sheck was placed under investigation because of an exercise she had in her class that changed the original language from the bad word to the less bad word (Negro).
We even have three principles on this blog (Niggardly) that are there because of an incident that happened involving its correct use being seen as offensive.
Why does everything have to be a race and class war now?
If “nigger” is kryptonite, it lost its power once black guys started using it. Sorry. A word that’s the worst thing in the world when said by a certain person can’t be cool when it’s said by another person.
Maybe a companion case can make its way to the Supremes wherein a black woman gets convicted of disorderly conduct for calling a white guy a white ass honkey cracker.
Keep the police out of enforcing good manners. Leave that to the churches and the schools. Her behavior is best simply considered inconsiderate of another. Whatever happened to “sticks and stones can break my bones, but words can never hurt me?”
Yes. The idea that a word is acceptable when spoken by someone of a certain hue, but becomes a challenge to fight by someone with a different hue, to the point that the speaking becomes a crime, does not seem to fit in a society committed to the rule of law.
Obviously, in this case, the proffered word did not cause an “immediate breach of the peace” as the speaker walked off unmolested, and in fact was walking away when the recording of the speech occurred. No aggressive move accompanied the word. The “sticks & stones” concept should apply here. Also, “toughen up, buttercup”.
Atty Andrew Branca (Law of Self-Defense) takes the position that Hendrix did not violate the MN law for which she was convicted. He addresses this in a couple of recent videos on YouTube.
Using derogatory language outside the confines of “trolling” someone for the lolz is absolutely prima facie evidence of having lost the fight or the argument. Even beyond derogatory language, any cursing is completely unnecessary. Just shows how emotional you are in an argument. Once the vulgarities are introduced, the argument is over and battle is started.
For me, it’s a battle of wits and once that other person cracks and starts hurling their best, all I need to do is step back and point and laugh at how they lost mastery of themself. It’s quite a spectacle really.
PWS
This sketch shows how a White Man says the N-Word to a Black Man.
My first disclaimer is that we should not use vulgarities, epithets, and slurs, but use wholesome language instead, according to Ephesians 4:29.
But somebody gets mad at somebody, and starts swearing and uses bad words. Is that disorderly conduct? Does using (some of those) bad words constitute a crime, e.g. disorderly conduct? A prosecutor and a jury in Minnesota thinks that way.
It has been said on this board that the USA is superior to the UK because the USA has a Constitution with freedom of speech guaranteed by the First Amendment, while the police in the UK arrests about 30 people a day for intemperate social media posts, with ugly things being said about privileged minorities such as asylum seekers and LGBTQ+. Now Shiloh Hendrix is convicted for her language, the question can be raised whether there really is big difference on free speech between the UK and (blue states of) the USA. So the question is whether Minnesota did an end run around the First Amendment by label Shiloh’s Hendrix speech as conduct that is disorderly because the word she used was a “fighting word”. There is no question that Shiloh Hendrix engaged in bad speech, but in order for the First Amendment to protect speech it has to protect bad speech. So I hope that Shiloh Hendrix appeals, as the the meaning of the “fighting words” doctrine is a legal question that should be decided by judges instead of a jury.
But I will put in my two cents on the issue, despite not being a lawyer.
I have not heard that an actual physical fight or any other type of disorder broke out after Shiloh used that word. A video was posted on the Web (not by Shiloh) recording the incident, which is also speech.
If somebody decides to start a physical fight over a word or over speech, then that person has anger management issues. There is a moral hazard involved with the “fighting words” doctrine as well. People who want certain words or speech want to be forbidden using this doctrine may decide to start fights and disorder to make that happen. E.g. if burning the American flag is habitually followed by riots and violence, the participants in these riots can claim that burning the American flag is not free speech under the “fighting words” doctrine.
So now about the word “nigger”. Is this word by definition a “fighting word”? Is this word only a fighting word when uttered by somebody who is not black? Or only when it directed at a black person spoken in anger? Why is “nigger” a fighting word, and not “cocksucker” or “motherfucker”? Is there a legal list of fighting words? Am I legally safe in using the word “nigger” in this comment?
What is so special, so unique about the word “nigger”? Does this word have some magical power? Like an ancient evil curse or spell? I remember a skit from Lenny Bruce about the word “nigger” saying , I will have to look it up.
And here is my other question, why is it OK for black people to use the word “nigger” and not for white people. Looks like the taboo on the word “nigger” is by itself racist.
Here is an example of how conservative influencer Andre Williams who comments on black culture defines the term as applying to the criminal underclass of blacks. Maybe we should reclaim the word “nigger”, to be used for people who are doing something bad or criminal.
Here it is Lenny Bruce.
two points:
I checked the court records. Unless I missed something, the complaint said she said the “n-word.” The motion to dismiss said she used the “n-word.” The State responded that she used the “n-word.” The Court denied the motion to dismiss because of her use of the word “nigger” and other conduct.
if it were me, I would have demanded a probable cause hearing to find what the FUCK she actually said. These are fucking lawyers who can’t even say what they think. And, I am vaguely familiar with the defense attorney and it is not as if he is prone to understatement.
point number 2: had a client who was sucker-punched in a bar. The other guy was charged with 5th degree assault and disorderly conduct. My guy got charged with disorderly conduct for getting sucker-punched (kind of reminds me of the time Axel Foley got charged for being thrown out of a window).
why was my guy charged with disorderly conduct? Because he apparently said his assailant was “gay.” I brought a probable cause motion to dismiss because calling someone gay could not be fighting words.
I practically dared the Court to declare that calling someone gay was a bad thing. The prosecutor thought twice and dismissed the case.
the system works.
it did not work in the Hendrix case. I hate to try to predict judicial rulings. But I believe this should get Overton appeal. And, it has the potential to make it to the Supreme Court.
coincidentally, Jack mentioned the RAV v St. Paul case. Another landmark Minnesota case. We read it in law school. It was a 9-0 decision (you-nanimous!) where 5 Justices decided the case and the 4 other Justices “concurred” for different reasons. A 9-0 decision that read like a 5-4 split.
-Jut
Yeah, exactly. Stupid.
In my opinion, it would be best if the Supreme Court simply overruled its “fighting words” jurisprudence and declared that there is no such thing.
Most of the reasons for this you thoughtfully laid out above. This is a slippery slope situation in which reaching for a rationale to justify leaving this verdict in place invites a whole raft of litigation declaring terms like “cocksucker” and “motherfucker” fighting words. Worse, more liberal courts will take it as a licence to consider failure to use “proper pronouns” fighting words. Even worse, we could end up where the only fighting word so recognized is “nigger.”
In my opinion, as reprehensible as Hendrix’s speech is, it should not be criminalized. Every exception to the First Amendment other than the well-recognized examples like defamation and fraud is a nail in it’s coffin.
Red Sox reference: in 1976, the Red Sox and Yankees had a rare real on-field brawl in Yankee Stadium. The prominent combatants were Yankee Graig Nettles and firebrand Sox pitcher Bill Lee. When the fight seemed to be over and everyone calming down, the video caught Lee shouting at Nettles as the teams began retreating. It was obvious that Lee said, “Hey fuckhead!” And the fight resumed with greater fury. Lee suffered a shoulder separation that disabled him for months.
Let’s compromise-
“Fighting words” can’t be punished on their own.
A person reacting to fighting words violently can’t be punished on their own.
If fighting words leads to fighting, let both participants be punished for disorderly conduct.
I think this is a dangerous compromise.
If somebody reacts violently to somebody’s expression assault or battery charges may apply. That does not qualify the expression that triggered the assault as “fighting words” in retrospect.
People have been assaulted in public for wearing a MAGA cap. Does wearing a MAGA cap constitute “fighting words”? What is the difference between a MAGA cap and the word “nigger” in this respect?
Correct. Fighting words would have to be reasonably understood as fighting words.
Heh. Hilarious.
I guess Nettles mother never taught him, “Sticks and stones may break my bones …”
Either that, or he just wanted an excuse to fight some more. 🙂
Ethically speaking, none of this happens if the first adult, Hendrix, simply confronts the child correctly instead of including a racial epithet.
No, ethically she did the proper thing, the necessary thing, and is a thing that many more self-respecting people must do. If you do not support her, you are on some other side, and one that ethically and morally must be condemned.
There is not one post that correctly identifies and responds to the “real issue”. The largest issue, the defining issue, is that over the course of a few decades a major demographic shift was engineered by factions and powers within the country. If there is an “ethical” issue to be discussed, that certainly must appear as a major one. What is happening, and what has happened, is that some people have awakened to the full understanding of what this portends. And they have begun to research the issue and have begun to express themselves.
Hendrix represents a group of people who are on the verge of becoming activists for the cause of their own selves and families. The people that offered support to her (money donated, moral support) desired to participate with her in the recovery of her own dignity, her right and their right to see and respond to what has been done to the nation and what is being done to a White culture. That is to say, the people who created the country and who “own” its destiny. I do not think there is even one person on this blog who could say such a thing — and that itself is an ethical problem. Why is that? What happened?
The culture itself has internalized the aggressive contempt shown by the man who provoked Hendrix. He should have been beaten on the spot and then deported. (My understanding is that he also got lots of money by donations and subsequently left the country).
The attitude of “anti-Whiteness” must be confronted and it must stop entirely. And the only way for that to happen is for Whites to recover a very direct appreciation and understanding of themselves through reanimation of a posture of empowered self-identity.
In fact that is what happened to Hendrix. She got support, she made connections, and she was able to leave that area that had been — that is being — overrun. And hundreds of thousands support her and perhaps they wish they could do the same.
And here is my other question, why is it OK for black people to use the word “nigger” and not for white people. Looks like the taboo on the word “nigger” is by itself racist.
The answer I think is to be found through a simple process of self-examination. By that I mean an examinations of how we ourselves have become dis-inclined to defend ourselves and our own interests and the degree to which, by way of our own attitudes, we support those who undermine, displace and also “replace” us. We are participants, not merely observers on the sidelines.
Far worse, infinitely and incomparably worse than using and resorting to an ugly word like that, is having lost the will and the drive to defend and protect one’s own community, family and nation. And the core? Not to be able to defend and appreciate one’s own self at a somatic level. Which means to be capable of having identity that includes valuation and understanding of one’s own race. That is an evil word today, is it not? But the amazing thing is that, and not even that long ago, it was completely normal and in fact “good” to see and appreciate oneself at the racial level in addition to many other levels. How did it cone about that this all changed snd so swiftly, so radically? I challenge you to answer that question.
The recovery of self, culture, society, and even civilization is what is at stake. But if one has lost or had removed from oneself even the possibility of vocalizing and believing in one’s core and basic identity on a biological/ethnological level, really one is lost. You’ll never recover and you’ll be destined to lose everything.