In May 2025, Shiloh Hendrix took her child to a park in Rochester, Minnesota. Apparently, a nine-year old Somali boy tried to steal something from her handbag, and Hendrix reacted by calling him the n-word.

An adult bystander, a Somali man called Sharmake Omar, then confronted Hendrix while filming her with his phone. The ensuing video shows Hendrix trying to leave, with her toddler in one arm, as Omar followers her, admonishing her for using a slur and urging her to repeat the n-word into his camera. Hendrix obliged the man, added some further racial invective, and then turned to continue walking away.

The entire video is about thirty seconds long. Hendrix never raises her voice, we never see her say anything to the Somali nine-year old, or to any child. It is unclear whether she was overheard by any child other than her own.

The incident generated a lot of public outcry at the time it occurred, both for and against Hendrix. She started a GiveSendGo that generated over $750K. Omar started a GoFundMe that generated close to $400K. On social media, Hendrix’s supporters pointed out that Omar had recently been criminally charged with raping a 16-year old foster home runaway. The month before the playground incident, the Olmsted County DA dropped those charges.

Voluntary dismissals by the State are governed by Minnesota Criminal Procedure Rule 30.01, which provides “The prosecutor must state the reasons for the dismissal in writing.” The only reason given in the State’s one-page dismissal was “In the interests of justice.” People on social media are speculating that the case was dismissed to avoid an ICE detainer. I’m not sure how true that is.

Olmsted County prosecutors then charged Hendrix with two counts of misdemeanor public disorder. This month, she was tried and convicted of public disorder toward Omar, and acquitted of public disorder toward the nine-year old boy. The trial lasted for four days—a ridiculous length of time for a case like this. During the trial, we learned that the nine-year old boy wears an ankle monitor because of a history of misbehavior and his parents’ derelict supervision.

Hendrix was convicted under Minnesota Statutes § 609.72. Here it is, in all its glory:

§ 609.72 Disorderly Conduct

Subdivision 1. Crime.

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

(1) engages in brawling or fighting; or

(2) disturbs an assembly or meeting, not unlawful in its character; or

(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

A person does not violate this section if the person’s disorderly conduct was caused by an epileptic seizure.

Clause two of the statute has already been struck down by the Minnesota Supreme Court, which noted that, “a statute is substantially overbroad … if, in addition to prohibiting unprotected speech, it also prohibits a substantial amount of constitutionally protected speech.” State v. Hensel, 901 N.W.2d 166, 172 (Minn. 2017).

Obviously, Hendrix did not engage in brawling or disturb a public meeting. So the third clause of the statute is the one that was applied here: “engages in… offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.”

The list of antisocial behaviors this clause may apply to, as written, is bottomless. Evidently, it prohibits an adult from saying the n-word to another adult.

In addition to free speech, the First Amendment protects the right to publicly assemble. In Coates v. City of Cincinnati, the Supreme Court struck down a city ordinance which provided that,

It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by…

The Supreme Court found this ordinance to be both unduly vague, and substantially overbroad. It’s important to note that undue vagueness and substantial overbreadth are two different things. Undue vagueness is a due process standard, while substantial overbreadth is a First Amendment standard that tests for whether the law at issue casts so wide a net that it impinges on First Amendment freedoms.

Coates is the landmark case in this line. The Supreme Court held that “The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.” 402 U.S. 611 (1971). Under this formulation of vagueness, Minnesota’s § 609.72(3) should be struck down.

What the State of Minnesota may try to argue is that § 609.72(3) requires “reasonableness,” thereby giving better notice than the Cincinnati ordinance of what’s prohibited, and thus provides “due process.”

I’m not sure how likely it is that the Minnesota Court of Appeals will buy that. Given the intractable culture war implications here, it’s conceivable that they might. In any case, where the statute is probably a bit more vulnerable to attack is on an overbreadth challenge.

There are two types of constitutional challenge that can be brought against a state law: a “facial attack” which seeks to invalidate the law, or an “as-applied challenge” which seeks a ruling that merely invalidates one particular application of the law under specific circumstances.

Facial attacks are disfavored by the courts. They are “the most difficult challenge to mount successfully” and will succeed only if an appellant can “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739 (1987).

However, overbreadth challenges are facial attacks by definition, because they implicate the way a law is written. They are also accorded special treatment by appellate courts, which allow third-party standing to litigants whose own speech is unprotected by the law at issue.

So we’re looking at a facial attack on § 609.72(3) and again, I think that overbreadth is the strongest avenue for this. Either the First Amendment allows us to say the n-word, or it doesn’t. If it does (and it obviously does) then § 609.72(3)’s prohibition of “offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is overly broad, and falls squarely within the ambit of Coates.

In terms of overbreadth, the complicating factor of Hendrix saying the n-word on a playground is that it gives the State of Minnesota fodder to portray the statute’s reasonableness requirement as a kind of redeeming factor. I wouldn’t buy that argument, and I think I know how the U.S. Supreme Court would rule. But it makes this case a wild card in the higher courts of Minnesota. Depending on what those courts decide, this could be a case to watch not only for the predictable culture war reasons, but because it could end up in the U.S. Supreme Court.

This blog post is commentary and is not legal advice for your individual situation. If you have a defamation, doxxing or First Amendment matter in Washington state, or in New Mexico, please visit my law practice at latenightlaw.com.

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