Digitus Impudicus: The Middle Finger and the Law - Wired

1428 University of California, Davis [Vol. 41:1403
Gooding v. Wilson, 185 for example, the Court struck down a Georgia
statute that proscribed the use of “opprobrious words or abusive
language, tending to cause a breach of the peace” in the presence of
others and without provocation. 186 The Court found that the Georgia
courts had not limited the scope of the statute to words that tend to
cause the average addressee to respond violently, and in turn found
the statute unconstitutional because it had the potential to reach
protected speech. 187
In prosecuting users of the middle finger gesture, law enforcement
officials often rely on disorderly conduct or breach-of-peace statutes or
ordinances. In order to survive constitutional scrutiny after Gooding,
state courts must limit these statutes to reach offensive language only
if the speech rises to the level of fighting words. 188 Thus, like the fword,
the middle finger gesture should fall within the scope of the
fighting words exception only when it is accompanied by highly
threatening language or aggressive movement. 189 For example, a
police officer in Kansas stopped a car and arrested a passenger who
had “flipped the bird” as he passed a parked patrol car. 190 Because the
Kansas Supreme Court had limited the state’s disorderly conduct
statute 191 to fighting words, 192 the State argued that the gesture
185 405 U.S. 518 (1972).
186 Id. at 518-19.
187 Id. at 524, 528.
188 See supra notes 184-87 and accompanying text. Many disorderly conduct
statutes also prohibit obscene speech or gestures, and courts have interpreted these
provisions to prohibit speech only when the speech falls within the legal definition of
obscenity. See infra Part II.B.
189 See, e.g., State v. Lynch, 392 N.W.2d 700 (Minn. Ct. App. 1986) (holding that
defendant’s actions amounted to disorderly conduct where crowd formed carrying
clubs while defendant yelled “motherfucking pigs” to officers); see also Biddle v.
Martin, 992 F.2d 673, 674-75 (7th Cir. 1993) (deciding that defendant’s actions
amounted to disorderly conduct where defendant made violent movements and
screamed at officer who was smaller than him on highway at three o’clock in
morning); State v. Brahy, 529 P.2d 236 (Ariz. Ct. App. 1975) (finding disorderly
conduct where defendant spit and screamed at officer).
190 Cook v. Bd. of County Comm’rs, 966 F. Supp. 1049, 1051 (D. Kan. 1997).
Cook was arrested and charged under the state disorderly conduct statute. He
subsequently brought a civil rights action in federal district court under 42 U.S.C. §
1983 against the police officer and other law enforcement officials. Id.
191 KAN. STAT. ANN. § 21-4101 (2003) (providing that “[d]isorderly conduct is,
with knowledge or probable cause to believe that such acts will alarm, anger or
disturb others or provoke an assault or other breach of the peace . . . [u]sing offensive,
obscene, or abusive language or engaging in noisy conduct tending reasonably to
arouse alarm, anger or resentment in others”).
192 State v. Huffman, 612 P.2d 630, 635-36 (Kan. 1980) (expressly construing