Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1427
the gesture may constitute unprotected fighting words. 179 In Cohen,
the Court acknowledged the distasteful nature of Cohen’s language,
but emphasized that the Constitution leaves the choice of personal
taste and decorum to individuals precisely because the government
“cannot make principled distinctions in this area.” 180 Writing for the
majority, Justice John Marshall Harlan famously recognized that “one
man’s vulgarity is another’s lyric.” 181
The Court’s fighting words jurisprudence reflects an attempt to
protect controversial or critical speech, which lies at the core of the
First Amendment, 182 while acknowledging a legitimate state interest in
preventing violence and maintaining public order. 183 Accordingly, the
Court has found unconstitutional state disorderly conduct or breachof-peace
statutes that are not limited in scope to fighting words. 184 In
179 See Mannheimer, supra note 168, at 1528 (stating that fighting words doctrine
serves important purpose of “preventing breaches of the peace that are both imminent
and likely to occur”).
180 Cohen v. California, 403 U.S. 15, 25 (1971).
181 Id.
182 See, e.g., N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing
“profound national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials”).
183 See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-74 (1942) (noting
that “the right of free speech is not absolute” and that it may be trumped by state’s
interest in preventing breach of peace); Aviva O. Wertheimer, Note, The First
Amendment Distinction Between Conduct and Content: A Conceptual Framework for
Understanding Fighting Words Jurisprudence, 63 FORDHAM L. REV. 793 (1994)
(examining theoretical basis of fighting words doctrine).
184 See, e.g., Gooding v. Wilson, 405 U.S. 518, 522-28 (1972) (striking down
breach-of-peace statute because Georgia courts had not appropriately limited scope of
statute, for statute could be violated merely by speaking words that might offend
listener); see also Lewis v. New Orleans, 415 U.S. 130, 132-34 (1974) (striking down
local ordinance that prohibited use of “obscene or opprobrious language toward or
with reference to any member of the city police while in the actual performance” of
officer’s duty). In Lewis, the Court noted that the Louisiana Supreme Court had not
limited the definition of “opprobrious language” to encompass only fighting words,
and that the ordinance was “susceptible of application to protected speech.” Id. at
133-34. In a concurring opinion, Justice Lewis Powell criticized the state court’s
interpretation of the ordinance because it conferred upon police virtually unlimited
discretion in making arrests. Id. at 134-36 (Powell, J., concurring). Justice Powell
noted that the ordinance was likely to be invoked only when an officer has no other
valid reason for arresting a suspicious person, and that the state court’s open-ended
interpretation of the ordinance created unacceptable opportunities for abuse by law
enforcement officials. Id. at 136.