Looking back at my law school education at the time of my graduation, I thought I had learned the answer to most difficult legal questions: It depends. I think that answer may apply to the question of whether calling someone the “n” word is protected speech under the First Amendment.
The Supreme Court has exempted “fighting words” from the protection of the First Amendment. It is a shrinking and dubious category, but as of today it still exists. The 2025 Harvard Law Review Note “Fighting Words at the Founding” presents a thought-provoking reconsideration of the doctrine in light of the common law at the time of the founding.
Is calling a black man by the “n” word subject to criminal prosecution for disorderly conduct under the doctrine of “fighting words”? That seems to be the issue raised by the Minnesota case John took up yesterday in “About the Minnesota ‘n’ word case.” Just about everything I know of the case is derived from John’s post.
The Minnesota Supreme Court has narrowed our disorderly conduct statute to comport with the “fighting words” doctrine enunciated by the Supreme Court. The doctrine generally requires words that tend to incite an immediate, direct threat of lawless action. The Supreme Court hasn’t upheld any convictions based on the doctrine since the Court formulated it in 1942. In general offensive or hateful speech remains protected. A conviction based on “fighting words” certainly stands a good chance of reversal on appeal.
Another Minnesota case — R.A.V. v. City of St. Paul (1992) — seems to put the docrine of “fighting words” on life support. Before it reached the United States Supreme Court, I was in the Minnesota Supreme Court on another case the morning it was argued. Ed Cleary argued the case for the juvenile defendant and recounted his experience in the memoir Beyond the Burning Cross.
The Minnesota Supreme Court has ruled in cases like In re Welfare of S.L.J. (1978) that our disorderly conduct statute cannot be used to punish speech merely because it is vulgar, offensive, or insulting. In the S.L.J. case the Minnesota Supreme Court held:
The real test is whether, under the facts and circumstances of this case, appellant’s mere utterance of these vulgar, offensive, insulting words would “`tend to incite an immediate breach of the peace,'” Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S. Ct. 970, 972, 39 L. Ed. 2d 214, 218; are “inherently likely to provoke violent reaction,” Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 1785, 29 L. Ed. 2d 284, 291; or “hav[e] an immediate tendency to provoke retaliatory violence or tumultuous conduct by those to whom such words are addressed,” State v. Hipp, 298 Minn. 81, 87, 213 N.W.2d 610, 614. The specific facts of the case are also important because, as in Lewis, whether words are “fighting words” depends on the circumstances surrounding their utterance.
Dick Gregory titled his 1964 memoir Nigger. It seems like just about every other word comedian Richard Pryor uttered in his wildly popular routines was the “n” word. He titled his 1974 album That Nigger’s Crazy.
Like Richard Pryor’s routines, the undercover recordings of the young Minnesota Somalis convicted in connection with their efforts to join ISIS were replete with the epithet. I attended the trial in 2016 to cover it on Power Line. Judge Michael Davis, who presided over the trial and is himself black, was visibly pained by what he heard in the recordings.
When blacks call each other the “n” word it generally does not constitute “fighting words.” A white person calling a black person the “n” word face to face in anger is something different. If the category of “fighting words” survives, its application in a given case raises a question of fact for a properly instructed jury.
The Harvard Law Review Note above, while hostile to the doctrine of fighting words, does not take up racial insults of this variety. I am curious what the author of the Note would think of the Rochester case. Addressing the Rochester case specifically, FIRE disputes the lady’s conviction:
Even if the “fighting words” doctrine still has a pulse, it’s very hard to see how it applies to [defendant Shiloh] Hendrix’s comments. The doctrine is, at most, confined to a tiny category of face-to-face insults that, under the circumstances, are likely to provoke an immediate violent reaction. But courts have made clear that even the most taboo racial slurs are not fighting words per se. And, as the video shows, Omar solicited Hendrix — who was walking away while carrying her child — to repeat the slur so he could capture it on video and shame her. She did so and then continued walking away. Nothing about the interaction suggests Hendrix’s words were likely to provoke an immediate violent response.
FIRE further argues: “Violent individuals shouldn’t have a veto over what others can say.” However, application of the “fighting words” doctrine requires an objective test. How would a reasonable person in the listener’s position respond? The larger point, however, is that the doctrine is vanishing.
I have tried to keep my personal opinion out of the brief summary above. I want only to add this. Based on the viral video of the woman, if I were a juror in her case, I might well have voted to find her guilty of disorderly conduct, but that’s just me.
Being called “Nazi filth” outside a Manhattan Insitute event in New York City last year made me physically ill. I thought they were fighting words. If I had the necessaries and was outside the presence of the police who were on hand, I would like to have pummeled the guy. I continue to mull over the proper response.
