MPR News reports: "Rochester jury finds woman who hurled racial slurs at a Black child on a playground guilty." Guilty of what? One count of disorderly conduct toward Sharmake Omar, the man who filmed her; but she was acquitted on a second charge of disorderly conduct for her conduct toward the kid that stole her baby's food. "She was ordered to pay a $1,000 fine, was placed on probation and ordered to complete community service," the article relates. Since she isn't facing jail time unless she violates probation, it is doubtful she will appeal the case, which is probably what the judge is counting on since the conviction rests on very shaky Constitutional grounds as this article from FIRE explains: "Shiloh Hendrix’s conviction can’t be squared with the First Amendment."
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.
What this case is really about is punishing an uppity white woman. If the races had been reversed and she had been calling out "cracker" at a white kid, the prosecutor would have laughed at the mere suggestion that a criminal offense had occurred.
But perhaps the deeper lesson here is that we need to deport people like Omar. The kid's father obviously wasn't that upset about the incident. So why was Omar following a white woman around in a park and filming her? Had he been filming her before this incident? Or did he manufacture this whole incident in order to make money (he has raised over $40,000 on SpotFund)?
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