The Law of The Middle Finger

“The Bird,” “The Finger,” “Half of a Peace Sign,” “The Freeway Salute.” Whatever you call it, it’s a strange thing. It’s nothing more than the raising of a finger in somebody else’s general direction, yet, for almost everyone, it immediately expresses a huge range of emotions, including hatred, contempt, and anger. In that respect, it’s pretty useful as a tool for quick non-verbal communication, even though it rarely communicates anything pleasant.

Likewise, being the target of this gesture can elicit rage, sorrow, and just about any other negative emotion you can think up.

There’s no denying that this simple hand gesture has a significant emotional impact. But can it ever be prohibited by law? A lighthearted but exhaustively-researched article argues that the answer is almost always “no,” arguing that, in most circumstances, giving the finger would be considered protected speech under the First Amendment.

While the act of giving the finger does not involve “speech,” in that it is entirely non-verbal, it is considered “expressive conduct,” which the U.S. Supreme Court has ruled is entitled to the same protection as verbal expression.

Recently, a man in Oregon has filed a lawsuit against his local sheriff’s department, alleging that they had no reason to arrest him when he displayed the gesture to some sheriff’s deputies. Indeed, he was arrested for that gesture, but was released without being charged with a crime. The lawsuit is still underway, but it is likely that the U.S. District Court will rule that the gesture is protected speech, though it may not award the plaintiff all of the remedies he is requesting, which include damages and injunctions – remedies not usually granted in First Amendment cases.

Of course, most of us intuitively know that not all speech or expressive conduct is protected by the First Amendment. The Supreme Court has repeatedly ruled that states can prohibit so-called “fighting words” – speech that, by its very nature, would provoke violence in a normal person. However, it’s not likely that the middle finger would meet that standard in most circumstances. After all, most of us have been the target of this gesture at least once in our lives, and the vast majority of people don’t respond to it with violence – they either give the finger right back, utter an insult, or (so I’ve heard, but I’m skeptical) realize the error of their ways and apologize for provoking the gesture in the first place.

It seems that this general assumption that insulting gestures are constitutionally protected is a positive good. In general, Americans place a huge premium on free expression of virtually all emotions and ideas, with the attitude that if some people are offended or insulted by non-violent expressive conduct, so be it. While the middle finger isn’t the most versatile or tactful mode of expression, it is certainly a powerful one. Furthermore, while flipping a police officer the bird may be disrespectful and ill-advised (after all, what if the police officer is having a bad day and isn’t up to speed on the Supreme Court’s 1^st Amendment jurisprudence?), it should not, without more, be criminally punishable.

By: Rusty Shackleford