In Minnesota, a mother who had the misfortune of being on camera during what was surely a low point in her life now has a criminal record for using a slur. Shiloh Hendrix was convicted of a misdemeanor for her behavior during a playground argument based on the application of an obscure and outdated legal doctrine: the fighting words exception to the First Amendment. Hendrix’s conviction is an outlier, at least for now. On July 30, Hendrix’s attorney filed a notice that Hendrix would be appealing the conviction.
While we won’t know all the bases for Hendrix’s appeal until she files her brief with the Minnesota Court of Appeals, this may be the rare case that persuades a higher court to finally retire the fighting words exception to the First Amendment. Overturning a constitutional doctrine is always a long shot, but Hendrix’s conviction exposes the doctrine’s deep flaws.
The incident took place in April 2025 at a playground in Rochester, Minnesota, after a Somali child took something from Hendrix’s bag. In the confrontation that followed, Hendrix is said to have used the n-word. A bystander began recording and confronted Hendrix, who was walking away. When the bystander goaded her, Hendrix used the slur on camera. The footage went viral, and Rochester prosecutors charged Hendrix with two counts of misdemeanor disorderly conduct: one tied to her conduct toward the boy, the other tied to her conduct toward the man recording her.
After a four-day trial, a six-person jury convicted her on the count involving the man with the camera but acquitted her on the count involving the child. The conviction rested on the “fighting words” doctrine — a narrow exception to First Amendment protection first recognized in the 1942 case Chaplinsky v. New Hampshire, which carves out speech that, by its very utterance, is likely to provoke an immediate violent response. Hendrix was fined $1,000 and sentenced to one year of probation, 200 hours of community service, and a stayed 90-day jail term. Hendrix’s attorney, Brian Karalus, has vowed to appeal.
Despite its ideological shifts over the past decades, the Supreme Court has repeatedly protected even unsympathetic criminal defendants from prosecutions based on speech. Two key cases underscore this point. In Brandenburg v. Ohio (1969), the Court overturned the conviction of a Ku Klux Klan leader who had called for violence against Black and Jewish people at a rally, holding that even speech advocating lawlessness is protected unless it is both directed to inciting imminent lawless action and likely to actually produce it. The Klan leader in Brandenburg was about as sympathetic a defendant as one could imagine, yet the Court still drew a hard line: the government cannot punish speech simply because it is hateful, frightening, or even calls for violence in the abstract.
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More recently, in Counterman v. Colorado (2023), the Court reversed the conviction of a man who had sent a series of threatening messages to a musician, holding that prosecutors must prove the speaker was at least reckless about whether his words would be perceived as threatening. The Court made clear that the victim’s perception of a threat was not enough; the First Amendment demands proof of the speaker’s own state of mind before speech can be criminalized. Both cases share a common thread: however offensive, alarming, or even violent speech may be, speech is nonetheless protected by the First Amendment unless it is a true threat or incitement to violence.
On appeal, Hendrix’s lawyers have a strong argument that the fighting words exception is a relic inconsistent with the Court’s incitement and true threat cases. Brandenburg requires proof that speech is likely to cause imminent lawless action, but fighting words asks only whether words are of the kind that tend to provoke violence in the abstract—a categorical judgment untethered from what was actually happening on the ground. Hendrix was walking away from the confrontation when she repeated the slur. The video makes clear that Hendrix and the bystander were never close to coming to blows. If a Klan leader's literal calls for violence at a rally failed to satisfy Brandenburg's imminence requirement, a woman retreating from an argument after being baited into repeating an ugly slur plainly does not either.
Counterman exposes a second, independent flaw: it requires proof that the speaker was at least reckless as to how her words would be received, while fighting words asks only whether an average listener would likely respond with violence. Hendrix was responding to a man who wanted the outburst on camera, not trying to provoke a fight, yet no court applying the fighting-words doctrine ever had to ask about her state of mind at all. A doctrine that ignores imminence and ignores intent is difficult to square with a jurisprudence built around both — and that tension is exactly what Hendrix’s appeal may be the vehicle to challenge the fighting words exception.
Constitutional concerns aside, Hendrix's conviction is simply unfair and arbitrary—a consequence of her unfortunate virality rather than the impartial exercise of prosecutorial discretion.
Consider the chants that have become commonplace at campus protests since October 2023: “globalize the intifada,” “from the river to the sea,” slogans that many Jews understand to be calls for violence against them personally, sometimes shouted inches from their faces as they walk to class. Yet prosecutions for such speech have been vanishingly rare. In most cases, these speakers deserve First Amendment protection, too. Yet Hendrix, a private citizen with no political platform, uttered a single ugly word in a spontaneous argument and was hauled into criminal court, fined, and sentenced to probation.
Hendrix was not singled out because her speech was more violent than the chants echoing across campuses. She was singled out because a viral video and a public outcry made her an easy target for prosecutors looking for a public victory. That is precisely the danger of a doctrine as vague as fighting words: it hands prosecutors the discretion to punish whichever speaker is politically convenient to punish, while ignoring speech that may be much more provocative. The solution is not to prosecute more speech. It is to retire a doctrine that gives the government that kind of discretion in the first place.
Andy Warhol promised everyone fifteen minutes of fame; he never warned that those minutes could end in a criminal record for a single ugly word. The jury itself seemed to sense as much when it acquitted Hendrix on the count tied to the child while convicting her only for words spoken to the man who filmed her. Overturning the fighting words exception on appeal remains a long shot. But a doctrine that can reach a woman muttering a slur while walking away from an argument she did not start is as good a candidate as any to finally bury it.
Jesse D. Franklin-Murdock is the Miles Visiting Fellow at the Center for American Liberty. He is also a partner at Sweigart Murdock, LLP, in San Francisco, where his litigation practice focuses on First Amendment and defamation law, civil rights, and political law.
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