Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1435
during an anti-war demonstration on a college campus. 242 The Court
indicated that it would be untenable to argue that the defendant’s use
of the f-word constituted obscenity in light of Roth and Cohen. 243
During the same time period, the Court decided several other cases
involving the f-word, each time finding that it was not legally
obscene. 244
While some may perceive the middle finger gesture to be offensive,
vulgar, or foul, it does not fall within the legal definition of obscenity;
consequently, its use should not be punished through the criminal
justice system. 245 In the words of one federal district judge,
“[e]mphatic and vulgar expressions of one’s discontent with an
official’s actions, while distasteful to the ear and offensive to the ego,
are not — standing alone — ‘obscene’ under the First Amendment.” 246
The middle finger gesture, like the word “fuck,” does have a sexual
connotation, 247 but one could not plausibly argue that it appeals to the
prurient interest or depicts sexual conduct in a “patently offensive
way,” as Miller requires. 248
Despite the apparent clarity of the Miller test as applied to the
middle finger gesture and the f-word, prosecutors continue to charge
242 See id. at 106-08. Witnesses later stated that they heard the defendant say, “We’ll
take the fucking street later,” and “We’ll take the fucking street again.” Id. at 107.
243 Id.
244 See, e.g., Papish v. Bd. of Curators, 410 U.S. 667, 667-70 (1973) (reiterating that
f-word is not obscene and overturning expulsion of graduate student who distributed
newspaper containing headline, “M— f— Acquitted” on university campus); Brown v.
Oklahoma, 408 U.S. 914 (1972) (vacating defendant’s conviction for using obscene
language while giving speech at Black Panther meeting); Lewis v. City of New
Orleans, 408 U.S. 913 (1972) (determining that calling officer “motherfucker” did not
constitute fighting words and articulating higher expectation of restraint by officers);
Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (holding that use of profanity at public
school board meeting was not punishable as legal obscenity).
245 Cf. Lawrence v. Texas, 539 U.S. 558, 571 (2003) (“These considerations do not
answer the question before us, however. The issue is whether the majority may use
the power of the State to enforce [views regarding the morality of homosexual
conduct] on the whole society through operation of the criminal law. ‘Our obligation
is to define the liberty of all, not to mandate our own moral code.’” (quoting Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992))).
246 United States v. McDermott, 971 F. Supp. 939, 940, 942 (E.D. Pa. 1997)
(overturning disorderly conduct conviction where defendant said “This is bullshit” to
security guard on military base).
247 See Miller, supra note 5 (observing that curled fingers on either side of extended
middle finger look like male genitalia, as well as bird); see also supra notes 208-14 and
accompanying text.
248 Miller v. California, 413 U.S. 15, 24 (1973).