Digitus Impudicus: The Middle Finger and the Law - Wired

1422 University of California, Davis [Vol. 41:1403
the value of the suppression of indecency).” 139 At least in theory, then,
the American legal system should be more tolerant of insulting
gestures than the Continental legal systems discussed above. 140
The following parts focus on the American legal system and the
First Amendment issues implicated by use of the middle finger
gesture.
II. THE MIDDLE FINGER AND THE FIRST AMENDMENT
While driving her three young children home from school on a
September afternoon, Laura Benson gave the finger to a school
crossing guard who had admonished Benson for driving too close to a
school bus. 141 Angry and offended, the crossing guard promptly called
the police, who cited Benson for disorderly conduct. 142 In lieu of
formal charges, the prosecutor asked a judge to reprimand Benson for
giving the finger to the crossing guard. 143 The judge reminded Benson
that she should treat crossing guards and law enforcement officials
with respect, but acknowledged that she probably had a constitutional
right to use her middle finger. 144
This incident illustrates that users of the middle finger gesture
might be — and often are — stopped, arrested, fined, prosecuted, and
even incarcerated under disorderly conduct or breach-of-peace
statutes and ordinances. 145 Below the surface of a seemingly
innocuous confrontation between a mother and a crossing guard lie
important constitutional questions regarding freedom of speech under
the First Amendment to the U.S. Constitution.
The First Amendment expressly prohibits the government from
abridging freedom of speech. 146 Despite the First Amendment’s
explicit reference to “speech,” the Supreme Court has held that, for
First Amendment purposes, speech is not limited to verbal expression,
139 Id. at 1381.
140 This comparison is beyond the scope of this Article and will not be addressed
further.
141 John Kass, New Digital Age in Need of Some Ethical Guidelines, CHI. TRIB., Nov.
19, 2003, at C2, available at 2003 WLNR 15318588.
142 Id.
143 Id.
144 Id.
145 See infra Part II.A-B (arguing that, in most cases, prosecution for use of the
gesture is unconstitutional).
146 See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the
freedom of speech . . . .”).