Freedom of Speech
You probably know that the First Amendment to the Constitution states that “Congress shall make no law . . . abridging the freedom of speech.”
So, is giving the finger to a police officer “speech” which is protected by the First Amendment?
Over the years, courts have interpreted “speech” to include not only spoken and written words, but also non-verbal “symbolic speech,” including marching, wearing armbands and expressive gestures such as this one.
Limits on Freedom Of Speech
But if giving the finger is considered “speech,” is it lawful speech?
After all, there are limits to what constitutes free speech. It is well-known, for example, that a person cannot yell “Fire!” in a crowded theater because of the danger that the speech would cause a panic. Schenck v. United States, 249 U.S. 47 (1919).
Similarly, the Supreme Court has held that the First Amendment doesn’t protect the right to speech used to incite violence – those are called “fighting words” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Obscenity is also not protected by the First Amendment. Under current Supreme Court precedent, the word “obscene” refers to material that appeals to the prurient interest, depicts or describes sexual conduct in a way that is patently offensive, and lacks serious literary, artistic, or scientific value.
So where does the middle finger salute fit? Does it represent “fighting words?” Is it obscene?
“Political speech” usually gets a heightened level of protection under the First Amendment. In New York Times v Sullivan, the Supreme Court observed that protection of political speech – and in particular, the ability to criticize public officials – is at the core of the First Amendment. And political speech clearly includes non-verbal gestures. In the landmark case of Tinker v. Des Moines, the Supreme Court held that students had a First Amendment right to wear black armbands to protest the Vietnam War.
OK, it’s time to cast your vote. Is flipping the bird unlawful because it represents fighting words or is obscene or is it protected political speech?
Well, the Supreme Court has not ruled on this issue. However, the overwhelming majority of states that have addressed the question have ruled that flipping off a cop is protected free speech. A number of convictions for disorderly conduct based on giving the finger to a police officer have been overturned. In some cases, the citizen has been able, in a later civil suit, to recover money damages from the police agency for wrongful arrest.
An exception is Maine. On January 13, 2009, a federal court in Maine, in an opinion that has been criticized, held that the First Amendment did not protect a man who was arrested for “disorderly conduct” for making the raised middle finger gesture toward two game wardens.
What can we make of all this?
Unless you live in Maine, you probably have a right – guaranteed by the First Amendment – to express your displeasure with a police officer by giving him or her the finger.
Of course just because it is lawful does not make it a good idea.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.