Digitus Impudicus: The Middle Finger and the Law - Wired

1424 University of California, Davis [Vol. 41:1403
gesture is used in conjunction with verbal speech, its message is clear
and its impact is the same. 154 Because the user almost always intends
to convey a message, 155 the legal consequences should not turn on
whether the gesture is accompanied by verbal speech. Accordingly,
courts have consistently found that the middle finger gesture
implicates the First Amendment. 156 In the words of Judge Alvin Rubin
of the U.S. Court of Appeals for the Fifth Circuit: “The thumbed nose,
the projected middle finger, . . . the grimace and the smile are all
conduct . . . intended to convey a message that is sometimes made
even more expressive by its bold freedom from a garb of words.” 157
The Supreme Court consistently has held that speech may not be
prohibited simply because some may find it offensive or coarse or
because it causes discomfort or anger. 158 At the same time, the Court
has made it clear that speech does not enjoy absolute protection and
that the government may regulate speech when doing so is necessary
to advance a legitimate governmental interest, such as preserving
community morality 159 or protecting minors. 160 The Court has
707, 709 (S.D. 2002) (stating that defendant gave the finger and mouthed words
“Fuck you” to middle school principal).
154 See, e.g., Nichols v. Chacon, 110 F. Supp. 2d 1099, 1103-04 (W.D. Ark. 2000)
(noting that the middle finger gesture has “commonly understood meaning and
connotation” and that, as legal matter, use of the gesture should be analyzed in same
manner as use of words “Fuck you”); Mitchell, 580 A.2d at 198 (noting that, where
defendant gave the middle finger gesture to judge, judge commented that gesture “was
saying something” and that “[w]hen one does that, one is speaking to the person he
does it to and it is no different than if one says those words audibly”); Max S. Kirch,
Non-Verbal Communication Across Cultures, 63 MOD. LANGUAGE J. 416, 419 (1979)
(stating that gestures such as the middle finger that express mockery or contempt
often express complete message and that “[t]he gesture may make verbal
communication superfluous”).
155 See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-7, at 827 (2d ed.
1988) (asserting that “[a]ll communication except perhaps that of the extrasensory
variety involves conduct”).
156 See, e.g., Nichols, 110 F. Supp. 2d at 1101-02, 1110 (holding that officer was not
entitled to qualified immunity where he arrested and charged driver with disorderly
conduct after driver gave officer the finger because it was well-established on date of
arrest that the middle finger gesture was protected speech under First Amendment);
Coggin, 123 S.W.3d at 87 n.2 (acknowledging that the middle finger gesture
constitutes speech under First Amendment because of its widely understood
meaning).
157 Davis v. Williams, 598 F.2d 916, 920 n.5 (1979).
158 See infra Part II.C.
159 See generally infra Part II.B (arguing that use of the middle finger is not
obscene).
160 See, e.g., New York v. Ferber, 458 U.S. 747, 756-57 (1982) (distinguishing
pornography involving consenting adults from pornography depicting children