Prof. Jeff Kosseff Interviewed by Post-Bulletin About Rochester Woman’s Appeal of Disorderly Conduct Conviction

Professor Jeff Kosseff was interviewed by the Rochester Post-Bulletin about a woman found guilty of misdemeanor disorderly conduct last month in connection with using a racial slur against an 8-year-old Black autistic child at a park. Shiloh Hendrix was sentenced to probation for one year with a stayed sentence of 90 days in jail and will have to complete 200 hours of community service. She has appealed the verdict. Free speech experts saying she has a reasonable chance of prevailing based on First Amendment grounds. She was convicted under a statute that defines disorderly conduct, in part, as language that is “offensive, obscene or abusive” and that would tend “reasonably to arouse alarm, anger or resentment in others.” The courts have over time constricted the provision’s meaning to what’s called the “fighting words” doctrine: for words to be criminal, they must not only be abusive and enraging, but likely to provoke an immediate violent response. Prof. Kosseff said, “You have to look at all the circumstances when you’re evaluating whether something fits within the fighting words exception to the First Amendment. So it can’t just be that something is offensive or deeply hurtful. It has to be: Is this going to likely produce an immediate violent reaction?”