The wrong way to confront racist speech

The Bible admonishes us plenty of times to watch what exits our mouths. As one of a dozen examples, take Ephesians 4:29: “Let no corrupting talk come out of your mouths, but only such as is good for building up, as fits the occasion, that it may give grace to those who hear.”

A Minnesota mom named Shiloh Hendrix missed that mark badly in her interactions with a child and another adult at a playground last spring, losing her cool on a kid who snagged an applesauce pouch from her diaper bag. The child was Somali, and Hendrix used a racist epithet when calling him to the carpet. That wasn’t appropriate, or morally acceptable, but it was also not a crime.

In our era of omnipresent camera-equipped phones, another adult, also Somali, confronted her while recording, daring her to repeat the insult. In a fit, she did, and the video went viral. Again, it wasn’t a good look, but it seems a stretch to call it a crime, and the other adult was taunting her in a way that escalated rather than defused the situation.

I was surprised this week when a Minnesota jury found her guilty of disorderly conduct in her confrontation with the other adult, though not as to the child. As a result, she was sentenced to pay a $1,000 fine and do 200 hours of community service, with the possibility of a 90-day stay in the slammer if she fails to follow through on the probation conditions.

Part of my surprise came because juries usually have a good head on their collective shoulders—the American system of criminal justice is built on the wisdom of twelve ordinary people empaneled in a jury. It’s democracy on a much smaller scale—one man, one vote in a different format as Jack Aubrey observes. Jurors are conscientious, take their jobs seriously, and appreciate the importance of their duty. No cultural touchstone better encapsulates the genius of that system than the classic black-and-white film 12 Angry Men starring Henry Fonda.

In this case, I’m surprised the jury found that Hendrix’s poor behavior rose to the level of a crime. It was unfortunate and wrong, but it didn’t strike me as illegal. There weren’t the usual exacerbating circumstances for disorderly conduct, like being drunk on a public street and picking a fight. Disorderly conduct is admittedly a capacious concept, but it still requires more than bad judgment or bad manners.

That’s partially because the Free Speech Clause of the First Amendment protects rude, vulgar, and profane speech. This didn’t look close to rising to the level of “fighting words,” those likely to directly spark a fight, especially when it was just as much the other adult who seemed to be egging her on.

I also find the whole incident an indictment of our viral video society. I’m not just surprised the jury convicted—I’m also surprised the police and prosecutor chose to charge Hendrix in the first place. They have a lot of discretion on how to handle these situations, and in an earlier era I think a stern warning from the chief of police would have been the end of l'affaire playground. But after the video was posted to the internet and flashed around the world, drawing the ire of millions, the prosecutor likely felt forced to act.

I’m skeptical that’s a good thing for our society. We all have off days and moments when we aren’t at our best. And some people use genuinely offensive language intentionally or hold abhorrent racist views. But for a private citizen in a local park, whether it was a one-off moment of overreaction or a symptomatic expression of a deeper, darker set of views, it seems cruel to make that the world’s business via the internet, to permanently disfigure the life of a person for that mistake.

Of course, we should not accept—and should confront—racism whenever it rears its ugly head. But there’s a way to do that which is humble, heartfelt, and human rather than angry and aggressive. That’s not what happened here on either side of the conversation, and that loss of civility is a sad reflection on the current state of our communities.