Shiloh Hendrix took the bait — prosecutors took it too far

I don’t love Shiloh Hendrix as a First Amendment martyr. Then again, most First Amendment martyrs aren’t especially lovable.

Maybe Hendrix is a great gal in person. I don’t know her. But on April 28, 2025, she was at Roy Sutherland Playground in Rochester, Minnesota, with her toddler when an 8-year-old black boy allegedly took an applesauce pouch from her diaper bag. Hendrix chased him, retrieved the pouch, and, according to witnesses, repeatedly called him the Very Worst Word in American English™.

A free country doesn’t need to convert every ugly human encounter into a criminal proceeding.

The row got the attention of Sharmake Omar, a Somali immigrant who began recording her on his phone. Hendrix told him it was “none of [his] f**king business” and walked away. Omar challenged her to say the word again.

Hendrix obliged.

“F**k you, n*****. N*****, n*****, n*****.”

Omar posted the video online, sans asterisks. Fifteen months later, an Olmsted County jury acquitted Hendrix of disorderly conduct toward the child — and convicted her of disorderly conduct toward Omar.

Say what?

For good or ill, Hendrix has now joined some august company: Eugene V. Debs, Charles Schenck, H.L. Mencken, Upton Sinclair, Henry Miller, Clarence Brandenburg.

The First Amendment has always had lousy taste in clients. Still, Hendrix hardly belongs in that group. Schenck went to prison for distributing anti-draft leaflets with the Bill of Rights printed on one side. Sinclair was arrested for reading the First Amendment aloud. Brandenburg, a Klansman, gave us one of the great protections for political advocacy.

Hendrix doesn’t even rise to the level of “F**k the Draft.” She got angry in a park, took the bait, and said an ugly word over and over.

Should she have exercised more self-control? Probably. But since when did criminal law punish bad manners?

Which brings me to Chaplinsky v. New Hampshire.

The 1942 Supreme Court case gave us “fighting words”: face-to-face insults punishable when likely to provoke an immediate breach of the peace and forming “no essential part of any exposition of ideas.”

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Libertarians mostly hate Chaplinsky. The Foundation for Individual Rights and Expression calls the doctrine “quaint” and notes that the Supreme Court has not upheld a fighting-words conviction in 80 years.

True enough. Give government power to punish offensive speech, and it will abuse it. That’s why I’m against hate-speech laws. But that does not require pretending every noise made by a human mouth is an “argument” worthy of First Amendment protection.

Hadley Arkes, the constitutional scholar who has influenced my thinking for decades, suggests an admirably simple test:

The soundness of the test can be confirmed again instantly whenever we give a panel of people this set of words and ask if they can identify the terms clearly established as terms of insult, as opposed to words that may be on the borderline of insult, or perhaps even terms of approval and commendation: 1) kike, 2) wop, 3) n*****, 4) urologist, 5) meter maid, 6) saint. People will not show the slightest puzzlement here in fixing on the words used as insulting or "fighting words."

Exactly. Nobody wonders whether “urologist” is the slur. A blind man could see the difference.

“F**k you, n*****” directed at a black man advances no proposition about race. It is an epithet. Threats, extortion, perjury, provocation — all are words, and all can be actionable.

I made a related argument 16 years ago in Snyder v. Phelps. Fred Phelps and the Westboro Baptist Church had every right to preach that America was damned. I argued that they did not have the right to commandeer a dead Marine’s funeral. Mencken called the boundary “the last limits of the endurable.”

So two cheers for Chaplinsky.

But that’s a long way from concluding that Hendrix committed a punishable offense.

She was carrying her child and walking away. Omar was recording and baiting her. He practically announced the consequence: The internet was going to see this. It did. Hendrix was identified, doxxed, and condemned by millions.

Omar had counter speech. He had a camera. He had the internet. He won.

Why did the state need to pile on?

Nothing about the encounter suggested an “imminent breach of the peace.” Yet the jury convicted Hendrix for insulting Omar while acquitting her over the nastier conduct alleged toward the 8-year-old.

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Hendrix’s attorney, Brian Karalus, says the judge excluded exculpatory evidence and mishandled witness disclosures. He called the proceeding a “fraud” and a “circus” and has filed an appeal. Maybe the appellate court says he is wrong, but I hope he wins.

Chaplinsky does not give prosecutors a permission slip. The state still must prove that these words, in this context, were likely to provoke a fight in the moment.

That’s what angers me about this case. It was needless.

Hendrix behaved badly. She said something vicious to a little kid and allowed herself to be provoked when she should have kept walking.

At the same time: So what? A free country doesn’t need to convert every ugly human encounter into a criminal proceeding.

Again, two cheers for Chaplinsky and the “fighting words” doctrine. It’s good law. We should keep it and use it — sparingly. But thank God for every last constitutional protection Shiloh Hendrix has coming to her.