Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1421
middle finger gesture. 129 The man was driving within the speed limit
and was photographed giving the finger to a stationary speeddetection
camera. Within thirty minutes, two police officers knocked
on the man’s front door and handed him a citation for “making
offensive gestures under the Public Order Act.” 130
In Germany, the law of Beleidigung, or “insult,” broadly criminalizes
hate speech as well as words, gestures, and other conduct that
indicates “disrespect or lack of respect” for another person. 131 The
German law of insult specifically criminalizes use of a gesture known
as “the bird,” which is formed by tapping the index finger on the
forehead and is typically used by car drivers to tell other drivers that
they are “mentally defective.” 132 An author familiar with German
culture has stated that all Germans know that it is illegal to use this
gesture. 133 The German law of insult criminalizes words as well as
gestures. 134 For example, an individual may be criminally prosecuted
for calling another person a “jerk.” 135
Legal scholar James Q. Whitman has argued that some European
cultures, especially German and French, tend to be tolerant of laws
prohibiting the use of insulting words and gestures because in those
cultures “‘[personal] honor’ is a protectable legal interest.” 136 In
contrast, American law tends to protect only against injuries to
reputation through the law of defamation, or against physical injuries
to the body that result from insulting remarks, such as intentional
infliction of emotional distress in tort law. 137 In addition, American
constitutional law extends more protection to free speech values than
Continental European legal systems afford. 138 Whereas German and
French law balance the speaker’s interest in free speech against the
listener’s legally protected honor, Whitman argues, the American legal
system “balances the value of free speech against nothing at all —
unless it is the value of the suppression of violence (and sometimes
129 See John Troup, Driver Fingered by Police, SUN (U.K.), Feb. 1, 2006, available at
http://www.thesun.co.uk/sol/homepage/news/article36359.ece.
130 Id.
131 See James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 YALE
L.J. 1279, 1295-96 (2000).
132 Id. at 1296.
133 Id.
134 Id. at 1297.
135 Id.
136 Id. at 1282.
137 See id. at 1292, 1382.
138 Id. at 1379-80.