Digitus Impudicus: The Middle Finger and the Law - Wired

1454 University of California, Davis [Vol. 41:1403
respect to the middle finger gesture. Justice Powell urged the Court to
adopt this position in a concurring opinion in Lewis v. New Orleans, 365
in which the Court evaluated the constitutionality of a New Orleans
ordinance that prohibited “wantonly” cursing, reviling, or using
“obscene or opprobrious language directed toward or with reference to
any member of the city police while in the actual performance of his
duty.” 366 The case arose when a police officer stopped Mallie Lewis
and her husband in their pickup truck. 367 The Lewises were following
a police car that was transporting their son to a police station after his
arrest. 368 Although the parties’ recollections of the encounter
differed, 369 the officer alleged that, when he asked for Lewis’s driver’s
license, she responded by saying, “You god damn m. f. police — I am
going to [the Superintendent of Police] about this.” 370 The officer
charged Mallie Lewis with breach of the peace under the ordinance. 371
The Louisiana Supreme Court ultimately upheld Lewis’s conviction,
finding that, although the ordinance only prohibited fighting words,
Lewis’s words and conduct fell within the scope of the ordinance. 372
The U.S. Supreme Court reversed, holding that the ordinance was
“susceptible of application to protected expression” and, therefore,
was constitutionally overbroad. 373 Specifically, the ordinance
prohibited the use of “opprobrious language” toward a police officer,
conduct); Martin A. Schwartz, First Amendment Protects Crude Protest of Police Action,
N.Y. L.J., Feb. 20, 2001, at 3 (encouraging individuals to treat law enforcement
officers with respect, but noting that, when individuals “slip up in their choice of
words,” arrest and prosecution should not result); Sean P. Gallagher, Note, First
Amendment Free Speech Issues Concerning Pennsylvania’s Local and State Police When
Policing Political Demonstrations, 9 WIDENER J. PUB. L. 143, 164 (1999) (explaining
that, in addition to use of the middle finger, other factors such as threats of physical
force and repeated aggressive actions are needed to raise such behavior to level of
disorderly conduct).
365 415 U.S. 130 (1974).
366 Id. at 132.
367 Id. at 131 n.1.
368 Id.
369 Lewis claimed that she did not use any profanity during the encounter and
alleged that the officer said, “[L]et me see your god damned license,” and “Get your
black ass in the god damned car or I will show you something.” Id.
370 Id.
371 Id. at 131.
372 New Orleans v. Lewis, 269 So. 2d 450, 456 (La. 1972). The Louisiana Supreme
Court found that directing obscene or offensive language toward a police officer while
in the performance of his duty “would be unreasonable and basically incompatible
with the officer’s activities and the place where such activities are performed.” Id.
373 Lewis, 415 U.S. at 134.