Digitus Impudicus: The Middle Finger and the Law - Wired

1436 University of California, Davis [Vol. 41:1403
individuals who use the gesture under disorderly conduct statutes. 249
This practice violates the First Amendment, wastes valuable judicial
resources, and defies good sense.
There are lesser forms of offensive speech than fighting words and
obscenity, forms that government actors have tried to curtail at
various times. The next section discusses these forms of offensive
speech, which are constitutionally protected.
C. Profane and Offensive Speech
The history of the law of free expression is one of vindication in cases
involving speech that many citizens may find shabby, offensive, or even
ugly. 250
It is firmly settled that under our Constitution the public expression of
ideas may not be prohibited merely because the ideas are themselves
offensive to some of their hearers. 251
As these excerpts indicate, the Supreme Court has reiterated that
profane or offensive speech, without more, warrants First Amendment
protection. In Chaplinsky v. New Hampshire, 252 for example, the Court
found that the State of New Hampshire could prohibit “disorderly
words,” such as “profanity, obscenity, and threats,” but only to the
extent that the words, when spoken face-to-face, are “plainly likely to
cause a breach of the peace by the addressee.” 253 Writing in 1942, the
Court found that epithets including “damn racketeer” and “damn
Fascist” were likely to cause an average addressee to retaliate, and thus
could be punished by the state. 254 By contrast, in Cohen v. California,
the Court ruled that California could not use its power as a guardian
of public morality to remove offensive language, such as the word
249 See, e.g., State v. Anonymous, 377 A.2d 1342, 1343 (Conn. Super. Ct. 1977)
(overturning criminal disorderly conduct conviction where defendant was charged
with making obscene gesture and holding that the middle finger gesture is not
obscene under Miller test because it does not “arouse sexual desire”); Commonwealth
v. Kelly, 758 A.2d 1284, 1286, 1288 (Pa. Super. Ct. 2000) (noting that defendant was
charged with disorderly conduct under provision of statute prohibiting obscene
gestures).
250 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 826 (2000).
251 Street v. New York, 394 U.S. 576, 592 (1969) (citations omitted).
252 315 U.S. 568 (1942).
253 Id. at 573.
254 Id. at 574.