Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1453
conviction was overturned on appeal. 361 While law enforcement
officers have the right to use their arrest power to preserve order, to
protect the general public, and to ensure their own safety, their
training should teach them to respect, and actively protect, the First
Amendment rights of middle finger users. 362 Case law and
commentary, as well as practicality, suggest that society should expect
police officers — based on their experience, training, and legal
obligation to preserve the peace — to exercise restraint and tolerance
when faced with criticism and offensive speech.
In reviewing disorderly conduct convictions based on an
individual’s use of the middle finger gesture or offensive language,
courts often discuss the importance of protecting the right to speak
freely, including the right to criticize the government by giving the
middle finger to a police officer. 363 In a series of cases, the Supreme
Court has stated that offensive or vulgar language directed at a police
officer, without more, provides an insufficient basis for criminal
liability. 364 The Court likely would reach the same conclusion with
disorderly conduct, on ground that the middle finger gesture is neither fighting words
nor obscene).
361 The Ohio Court of Appeals upheld a disorderly conduct conviction,
distinguishing nonpersonal language not directed toward a particular officer from
offensive language specifically directed toward a particular officer. Wood, 679 N.E.2d
at 739. The court reasoned that the defendant sought out the officers and continued
to use abusive language and the middle finger gesture even after officers asked the
defendant to desist. Id. at 737, 739-40.
362 See NEW YORK POLICE DEPARTMENT, POLICE STUDENT’S GUIDE ch. 5, at 1, 9, 21
(2004) (stating that, when police officers are assigned to maintain order at public
demonstrations, their obligation includes protecting “constitutional rights of the
demonstrators to free speech and peaceful assembly,” as well as protecting rights of
nonparticipating members of public). A police officer’s power to affect lives and
liberty is “not a license to do whatever [the officer] want[s] to do.” Id. at 9. Instead,
“[a]ll police decision-making must occur within limits imposed by the United States
Constitution, federal, state, and local ordinances, and precedents set forth by court
decisions.” Id. ch. 6, at 1.
363 See, e.g., Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990)
(discussing importance of allowing citizens to criticize police); Cook v. Bd. of County
Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (rejecting county’s argument for
per se rule that one who “flips the bird” to police officer forfeits all constitutional
rights); cf. Diehl v. State, 451 A.2d 116, 122 (Md. 1982) (holding that individual
usually does not commit criminal violation by verbally protesting police officer’s
unlawful order, and overturning disorderly conduct conviction where defendant
refused to get into his car as ordered by police and shouted “Fuck you,” “I know my
rights,” and “You can’t tell me what to do” to officer).
364 See infra notes 365-91 and accompanying text; see also Brockway v. Shepard,
942 F. Supp. 1012, 1015-18 (M.D. Pa. 1996) (reversing lower court’s ruling and
finding that use of the middle finger alone does not rise to level of disorderly