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But why? This seems to me like a pretty open-and-shut case of freedom of expression to me. She called the thieving child a nigger (for which she was acquitted), then she repeated it to the rapist on camera after he explicitly asked her to,* for which she was convicted. I’m struggling to see how her conviction wasn’t clearly inappropriate given the circumstances.
*”Why don't you have the balls to say it right now again so that the world can see?”
If the appeals courts read it as a fighting words case, then there's a pretty big onus to review the facts de novo, and they're pretty favorable to Hendrix: the court has to hold that Hendrix's words were probable to cause an immediate violent response from the guy she said them to, and that she intended for them to provoke him. It's not a slam dunk, but it's her best-case scenario.
But they don't have to do that. Hendrix's conviction doesn't read as 'saying fighting words'; it's just disturbing the peace. If she was convicted because of a combination of words and actions, then the question of whether that conviction was really about the actions is a question of fact. And questions of fact get reviewed only for clear error, with a massive lean toward the findings of the initial court. And if you squint really hard, maybe the jury convicted because she was threatening! Or pushy! Or starting a loud argument in a public space!
You and I may know perfectly well that she's never have been tried without the word, but that's a selective prosecution argument, not impossible in a 1A context but a very steep lift regardless because it's near-impossible to prove.
So a motivated appeals court doesn't have to even examine the fighting words doctrine at all. And there's a lot of motivated judges to be found.
If it has to go to SCOTUS, that court has literally thousands of cert requests on an annual basis, and hears less than a hundred. They routinely deny more serious, wide-ranging, and impactful cases. John Roberts isn't going to bend over backwards for Hendrix.
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