Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1431
described as obscene in the common parlance is not determinative of
whether that gesture falls within the legal definition of “obscene”
speech. 207
The middle finger gesture traditionally has been associated with the
male genitalia. 208 Anthropologist Desmond Morris has linked the
middle finger gesture to dominance behavior among monkeys and
apes. 209 Comparing the middle finger gesture to an erect penis, Morris
notes that “the act of male erection or copulation becomes symbolic of
male dominance and can be used as a dominance gesture in totally
non-sexual situations.” 210 To the ancient Romans, who called the
gesture the “obscene middle-finger,” 211 the raised middle finger
signified anal intercourse and was intended to threaten and intimidate
the victim. 212 Although the gesture undoubtedly retains this phallic
connotation, 213 it does not fall within the current legal definition of
obscenity. 214
gesture language in disorderly conduct statute because the gesture was “angry”
expression and had “nothing to do with sex”).
207 See United States v. McDermott, 971 F. Supp. 939, 943 n.11 (E.D. Pa. 1997)
(finding that expression, “This is bullshit,” was “certainly . . . obscene in everyday
parlance,” but concluding that it was not legally obscene); Brockway, 942 F. Supp. at
1016 (noting that Miller’s definition of obscenity differs significantly from meaning of
“obscene gesture” in everyday speech, and concluding that the middle finger gesture is
not legally obscene because it does not appeal to prurient interest); Kelly, 758 A.2d at
1288 (acknowledging that words “Fuck you asshole” and the middle finger gesture
may be obscene in common parlance, but finding that they were not legally obscene).
208 See, e.g., LOHEED ET AL., supra note 33, at 11-13 (referring to the middle finger as
“penile proxy”).
209 See MORRIS, supra note 110, at 198 (explaining that monkeys and apes employ
simulated sexual actions to assert dominance and threaten other animals).
210 Id. (noting that members of either sex can use the middle finger gesture as
expression of dominance); cf. Don Aucoin, Curses! ‘The Big One’ Once Taboo, The
Ultimate Swear Is Everywhere, and Losing its Power to Shock, BOSTON GLOBE, Feb. 12,
2004, at B13 (noting that, where group of 14-year-old girls “dropp[ed] F- bombs left
and right” on busy New York street, bystander perceived that their language was
“assertion of dominance” and that girls were “muscling [him] linguistically”).
211 See MORRIS ET AL., supra note 56, at 82 (noting that ancient Romans found the
middle finger gesture so offensive that actor was banished from Italy after giving the
finger to member of audience who had heckled him).
212 See LOHEED ET AL., supra note 33, at 13.
213 See, e.g., State v. Anonymous, 377 A.2d 1342, 1343 n.2 (Conn. Super. Ct. 1977)
(stating that the middle finger gesture is a phallic symbol “of ancient origin”); AXTELL,
supra note 58, at 106 (asserting that most historians agree that the middle finger
gesture is viewed as crude and obscene due to its phallic connotation); Miller, supra
note 5 (acknowledging that the middle finger gesture is commonly understood as
phallic symbol).
214 See, e.g., Commonwealth v. Danley, 13 Pa. D. & C.4th 75, 77 (1991) (finding