Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1429
amounted to fighting words. 193 The federal district court expressly
rejected the State’s “unprincipled assertion” that one who gives the
finger to a police officer automatically forfeits First Amendment
protection. 194 The court went on to find that the police officer was not
entitled to qualified immunity for making the arrest. 195 It concluded
that a reasonable police officer would not have grounds to believe that
the defendant was engaged in disorderly conduct when he gave the
middle finger to the officer, because the statute only applied to words
that “by their very utterance inflict[ed] injury or tend[ed] to incite an
immediate breach of the peace.” 196 Similarly, in Sandul v. Larion, 197 the
U.S. Court of Appeals for the Sixth Circuit stated that police officers
should know that use of the words “Fuck you,” accompanied by the
middle finger gesture, do not constitute fighting words, and therefore
could not fall within the scope of any disorderly conduct statute. 198 In
that case, Sandul was arrested after he shouted “Fuck you!” and gave
the middle finger to protestors outside an abortion clinic as he drove
past them at a high speed. 199 The court explicitly stated that use of
foul language alone does not constitute criminal conduct. 200
statute to apply to fighting words only).
193 Cook, 966 F. Supp. at 1051-52.
194 Id. at 1052.
195 Id.
196 Id.
197 119 F.3d 1250 (6th Cir. 1997).
198 Id. at 1255-56.
199 Id. at 1252. An officer followed Sandul’s truck and later arrested him. Id.
Sandul was acquitted of the disorderly conduct charge in state court and filed claims
under 42 U.S.C. § 1983 against the police officers involved in his arrest. Id. at 1253.
200 Id. at 1255. Other courts have declined to adopt a bright-line rule,
acknowledging that words or gestures can fall within the scope of a disorderly
conduct statute in some circumstances. A Michigan appeals court acknowledged that
the middle finger gesture could fall within the scope of a disorderly conduct statute.
People v. Smith, 262 N.W.2d 900, 901 (Mich. Ct. App. 1977). The court overturned a
conviction where the defendant gave the finger to a police officer after nearly avoiding
a collision with the officer’s unmarked patrol car. Id. at 903. Noting that the
defendant’s use of the middle finger gesture in this situation was nothing more than a
“spontaneous reaction to a sudden emergency which commonly occurs each day,” the
court nonetheless stated that the middle finger gesture could fall within the scope of
the disorderly conduct statute under certain circumstances. Id. Similarly, an Ohio
appeals court found that the words “Fuck you,” whether spoken or delivered via the
middle finger gesture, can constitute fighting words if delivered “specifically and
intentionally” toward an individual. State v. Wood, 679 N.E.2d 735, 740 (Ohio Ct.
App. 1996). In Wood, an alumnus of Kent State University approached two university
police officers, gave them the middle finger, and spoke to the officers in offensive and
abusive language. Id. at 737. This result is consistent with constitutional