Cause for Celebration? Wrong Verdict? Maybe Both?

Shiloh Hendrix at her trial.

Curmie has often claimed to be more of a civil libertarian than a liberal, but there are limits to that analysis.  He believes, for example, that the 2nd Amendment doesn’t mean that the general population ought to have ready access to semi-automatic weapons.  We’ve gone over those arguments before, and they needn’t be repeated here.

The 1st Amendment has similar boundaries: slander, “true threats,” incitement to immediate illegal activity, etc.  You can’t yell “Fire!” in a crowded theater, and so on.  But some situations aren’t so easy to classify.  One recent example would be pro-Palestinian protesters chanting “from the river to the sea.”  It’s not difficult to imagine a scenario in which those words could reasonably be construed by some onlookers as a “true threat,” but the mere fact that someone might be offended or even apprehensive isn’t enough to deny 1st Amendment protection.

Or at least that’s Curmie’s view; his position is supported by the likes of Eugene Volokh and Will Creeley.  They are, respectively, one of the most-respected constitutional scholars in the country and the legal director at the Foundation for Individual Rights and Expression (FIRE). 

The most recent case to make national headlines concerns Shiloh Hendrix.  She’s the Minnesota woman who was recently convicted of disorderly conduct for calling a young black boy a “nigger.”  Well, actually, despite what a lot of the headlines imply, she was acquitted of that charge.

OK, here we go.  In April (naturally, Wikipedia says May) of last year, Hendrix, who is white, took her toddler to the park in Rochester, MN.  Curmie is trusting the account of FIRE’s Aaron Terr on what follows: an 8-year-old black boy allegedly reached into her diaper bag and took (i.e., stole) an applesauce pouch.  Hendrix then chased after him, and called him a “nigger.”

This caught the attention of a bystander, Sharmake Omar, who is also black.  Omar starts recording on his phone, criticizing Hendrix’s use of the racial slur.  She responds, “it’s none of your fucking business,” and adds a gesture that one of Curmie’s Irish friends refers to as “the long finger.”  Omar then challenges her to repeat the word; she obliges: “Fuck you, nigger. Nigger, nigger, nigger.” <Sigh.> 

After a little more cross-talk, she walks away, meaning there was never even a threat of violence.  Omar says, “OK, we’ll see about that, what the internet has to say about you.” That threat was indeed realized, as the video went viral, and Hendrix ended up being charged with three counts of disorderly conduct, that all-purpose charge which is sometimes legitimate and sometimes a stand-in for “you didn’t really do anything illegal, but we didn’t like it.”

Two of the three counts (Curmie can’t figure out what the third one was for… saying “fuck,” maybe?) went forward to trial, where Hendrix was actually acquitted for her using the slur to the child but convicted for her interaction with Omar.  Curmie can’t quite wrap his head around the reasoning there.  After all, Omar was egging her on; he’s as responsible as she is for that altercation.  All Curmie can think of is that what she said to the boy isn’t recorded.  Hendrix doesn’t explicitly acknowledge Omar’s allegation, so the evidence is perhaps a little shaky. 

There are other questions, too, before we get to the central argument.  Why wasn’t Omar called as a witness?  Was he, as some commenters on video posts suggested, “back in Somalia” (voluntarily or otherwise)?  Why did Shire Jimale, the boy’s father, testify?  If he was there at the incident, why didn’t he prevent his kid from stealing the applesauce?  (Or, whether he was there or not, teach him not to take other people’s stuff?)  If he wasn’t present, who was looking after the boy?  And what does he have to offer that is in any way pertinent?  That the boy is autistic has no relevance to Hendrix’s behavior, and therefore none to the case.

Is it relevant that Hendrix was doxed and raised some $860,000 for attorney’s fees and relocation?  Or that the NAACP raised over $300K for the boy?  Is there anyone in this case who we can actually cheer for?

Finally, Curmie notes that there seems to be something magical about the term “nigger” and its ability to trigger a response.  If the demographics were different (and remembering that it’s the encounter with Omar, not the boy, that got Hendrix convicted) would there even have been a case if the offensive term were “fag” or “spic” or “kike”… or “cheese-eating surrender monkey”?  Curmie has a couple of black friends who think that proverbial “n-word” really is different.  Curmie respects their perspective but struggles to see why he should agree with it.

The case is also intriguing for another reason.  Unlike the MAGA faithful, Curmie doesn’t think that something isn’t a problem just because he’s never personally seen it manifested.  That said, it’s been decades since he heard that—or, indeed any—racial slur applied in the speaker’s own voice, that is, not as an actor in a play or film, or as a critic, professor, or journalist quoting from a book, movie, etc.  That’s because most people, especially those with whom Curmie chooses to associate, have learned that using offensive terms, even those that were once commonplace, just isn’t cool.  So, there’s an added level of shock.  None of the foregoing, of course, is in any way intended to deny the experience of those who have indeed been on the receiving end of such verbal assaults.

So now we finally get to the key question: should that which is reprehensible automatically be illegal?  Curmie thinks not, not merely because that’s what seems in keeping with constitutionality, but also because assigning parameters of offensiveness sort of defeats the whole idea of free speech.  If Curmie calls some politician a “scum-sucking shitgibbon,” that’s part of the give-and-take of democratic (lower-case “d”) politics.  And if that pol responds in kind, that is, too.

Of course, there are limits.  Curmie may have pretty much abandoned Jack Marshall’s Ethics Alarms blog when it took a hard right turn into defending (or ignoring) indefensible behavior of the Trump administration, but there are some topics for which Jack’s perspective remains valuable.  His delineation of the relevant past SCOTUS rulings is particularly useful, even if the resulting guidelines are, in his words, “clear as mud.”

There are good arguments both ways, which is why the topic intrigues Curmie.  No one Curmie wants to associate with would use the word “nigger” the way Hendrix did.  Unlike, say, “from the river to the sea,” there is no other possible meaning except as slur.  That’s relevant, but does it meet the “fighting words” threshold?  Curmie doesn’t know, but presumably the jury thought so.  And, of course, a lot of the support, monetary and otherwise, Hendrix has received has come from other racist jackasses.  Most of them are savvy enough to cloak their vitriol in 1st Amendment garb, but the racial animus is still perceptible.

All that said, Curmie is still going to side with the civil libertarians on this one.  As Terr points out,

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.

Hendrix’s behavior was unquestionably unethical.  She deserves to be shunned.  But if acting like an asshole for a minute or so is actually illegal, then virtually everyone in the country would have a criminal record.  “Yes,” as Terr says, “that means we must sometimes tolerate speech we find repugnant. But that’s the only way to ensure the speech we value remains free.”

In other words, Curmie thinks the prosecutor and the jury got it wrong.  (The defense attorney claims the judge was against him, too.  Curmie isn’t going to take sides in that squabble.)  But there are two reasons to be at least cautiously optimistic.  They seem to contradict each other, but that means that one of them (at least) is likely to be true.  Hendrix has already appealed the conviction, meaning that it will be reviewed by at least one higher court, possibly all the way up to SCOTUS.  An acquittal cannot be appealed, and double jeopardy would apply.  The conviction, then, allows a little more judicial light into the room. 

That is, one of two things must happen.  Curmie doubts that the conviction will be upheld, but if it is, then racists, homophobes, and similar bigots of the future might be a little more reticent about spewing their hatred into the world.  That would be a good thing.  If Hendrix wins on appeal, then the spirit of the 1st Amendment would be upheld, and some court, perhaps even SCOTUS, would be forced to better define the parameters of protected speech.  That, too, would be a good thing.

Oh, and both the city and Hendrix will have to spend a lot of money on the appeal process.  Good.  They both deserve it.