Digitus Impudicus: The Middle Finger and the Law - Wired

1426 University of California, Davis [Vol. 41:1403
Although the Court has not directly addressed whether the middle
finger gesture constitutes fighting words, it has decided a case
involving an individual’s use of the word “fuck.” In Cohen v.
California, 170 the Court overturned a conviction for disturbing the
peace by offensive conduct where the defendant was arrested for
wearing in a courthouse a jacket bearing the words “Fuck the
Draft.” 171 The Court described fighting words as “those personally
abusive epithets which, when addressed to the ordinary citizen, are, as
a matter of common knowledge, inherently likely to provoke violent
reaction.” 172 In overturning Paul Cohen’s conviction, the Court
emphasized that, in order to qualify as fighting words, the speech
must be directed toward a particular person as a personal insult. 173
This requirement was not met in Cohen; the Court found that the
jacket bore a general message and no one present in the courthouse
could interpret the words as a personal insult. 174 Similarly, in Texas v.
Johnson, 175 the Court held that the act of flag burning could not be
prohibited as fighting words because no reasonable witness could
interpret the flag burning as “a direct personal insult or an invitation
to exchange fisticuffs.” 176
In addition, the Supreme Court has emphasized that fighting words
are prohibited not because of the thought or idea they express, but
because of the manner and potentially violent consequences of the
speech. In R.A.V. v. City of St. Paul, 177 the Court explained that
fighting words are excluded from the scope of the First Amendment
not because of the content of the communication, but instead because
of the “intolerable (and socially unnecessary) mode of expressing
whatever idea the speaker wishes to convey.” 178 In other words, a
speech act — such as using the middle finger gesture — may be
protected by the First Amendment in most circumstances. Where
imminent violence is likely to result from the speech, however, use of
court’s analysis of offensive words).
170 403 U.S. 15, 16 (1971).
171 Id. at 16-17, 26 (finding that California could not criminalize mere public
display of “this single four-letter expletive”).
172 Id. at 20.
173 See id.
174 Id. The Court noted that no one in the courthouse was “violently aroused” by
the message on Cohen’s jacket. Id.
175 491 U.S. 397 (1989).
176 Id. at 409.
177 505 U.S. 377 (1992).
178 Id. at 393 (emphasis added).