Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1457
from criticism any more than Cabinet Ministers.” 390 In another case
cited in Hill, an English court found that an individual who objected
to the arrest of a boy who had been in a fight had “done no wrong” by
telling the officer that he had “no right to handcuff the boy.” 391 These
cases lent support to the Court’s conclusion that it is reasonable for
society to hold police officers to a higher standard by expecting that
they will tolerate verbal criticism and abuse when carrying out their
daily law enforcement duties.
State and federal courts in the United States are divided on the
extent to which officers should be required to tolerate offensive speech
and the extent to which the middle finger gesture is protected by the
First Amendment. 392 Some jurisdictions have adopted the reasoning of
Hill and Justice Powell’s concurrence in Lewis, finding that it is
reasonable to expect police officers to abide verbal criticism. 393 For
390 Id.
391 Id. (quoting Levy v. Edwards, (1823) 171 Eng. Rep. 1094 (K.B.)).
392 See Diehl v. State, 451 A.2d 115, 121 (Md. 1982) (noting that it is not clear
whether words addressed to law enforcement officer can constitute fighting words or
whether “a different and higher standard applies”). Compare H.N.P. v. State, 854 So.
2d 630, 632 (Ala. Crim. App. 2003) (“The fact that [a police] officer encounters . . .
vulgarities with some frequency, and the fact that his training enables him to diffuse a
potentially volatile situation without physical retaliation . . . means that words which
might provoke a violent response from the average person do not, when addressed to
a police officer, amount to ‘fighting words.’”), State v. John W., 418 A.2d 1097, 1106
(Me. 1980) (“We presume that a police officer would not so readily respond violently
to conduct of the sort engaged in by John W.”), and City of Bismarck v. Schoppert,
469 N.W.2d 808, 813 (N.D. 1991) (reversing disorderly conduct conviction where
“testimony confirmed the notion . . . that those well-trained and experienced police
officers were able to hear Schoppert’s vulgar and abusive speech as part of their
duties”), with Duncan v. United States, 219 A.2d 110, 112-13 (D.C. 1966) (explaining
that it does not matter that insults were addressed to officer, because despite fact that
it is officer’s duty to preserve peace, “he is like other human beings and under great
stress of abuse may forget his official duty and fight back,” and noting that officer
“does not lose his human nature simply because he wears a star”), and City of St. Paul
v. Morris, 104 N.W.2d 902, 903 (Minn. 1960) (“While it is obvious that not every
abusive epithet directed toward police officers would be sufficiently disturbing or
provocative to justify arrest for disorderly conduct, there is no sound reason why
officers must be subjected to indignities such as present here, indignities that go far
beyond what any other citizen might reasonably be expected to endure.”).
393 See Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (stating that
police officers may resent, but must endure, insulting words and gestures directed
against them); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1107 (W.D. Ark. 2000)
(recognizing that, while police officers have difficult job for which they deserve
courteous treatment, they must respect individual’s right to question and challenge
police). In both cases, the courts held that the arrests violated the First Amendment
because the conduct directed at police officers did not amount to fighting words.
Duran, 904 F.2d at 1378; Nichols, 110 F. Supp. 2d at 1110. The Nichols court