Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1433
Miller’s three-part test remains the standard for determining whether
material is legally obscene. 225
Depending on the context in which it is used, the middle finger
gesture likely fails to satisfy any of the three prongs of the Miller
test. 226 Under the first element, the trier of fact must determine
“whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest . . . .” 227 The Court did not, however, provide precise
guidance regarding whether material “appeals to the prurient interest”;
instead, it requires that the trier of fact make the determination based
on the standards of the local community. 228 In almost all
circumstances, the middle finger gesture is used to express frustration,
anger, or defiance — not to cause sexual arousal. 229 As one judge
observed: “It would be a rare person who would be ‘turned on’ by the
display of a middle finger.” 230
Under the second element, the trier of fact must determine “whether
the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law.” 231 Although
the Court gave individual states and communities a great deal of
discretion in determining which depictions of sexual conduct could be
prohibited under an obscenity law, it suggested specific sexual acts
that might fall within the definition of obscenity, including graphic
depictions of “ultimate sexual acts, . . . masturbation, excretory
functions, and lewd exhibition of the genitals.” 232 While the middle
finger gesture has been associated with male genitals and sexual acts,
individuals generally use the gesture in order to convey a message of
anger or disdain, and not to depict a sexual act. 233
225 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-46 (2002) (discussing
and applying Miller obscenity test in child pornography case).
226 See supra notes 222-24 and accompanying text.
227 Miller, 413 U.S. at 24 (internal quotation marks omitted).
228 Id.
229 See, e.g., Commonwealth v. Kelly, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000)
(stating that sexual connotation of the gesture and f-word is tangential to speaker’s
actual message).
230 Brockway v. Shepherd, 942 F. Supp. 1012, 1016 (M.D. Pa. 1996).
231 Miller, 413 U.S. at 24.
232 Id. at 25.
233 See, e.g., Brockway, 942 F. Supp. at 1017 (noting that using f-word or the
middle finger gesture is not sexual act); Kelly, 758 A.2d at 1288 (holding that
individual’s use of the gesture and profanities directed at construction worker
expressed disrespect and anger and lacked any relevance to sexual conduct).