Digitus Impudicus: The Middle Finger and the Law - Wired

1458 University of California, Davis [Vol. 41:1403
example, the U.S. Court of Appeals for the Second Circuit held that an
individual’s “right to criticize the police without reprisal” is protected
by the First Amendment, and that “[s]peech directed at police officers
will be protected unless” it rises far above mere “inconvenience,
annoyance, or unrest.” 394 In a case in which an individual gave the
middle finger to a police officer, the U.S. Court of Appeals for the
Ninth Circuit held that such “expression[s] of disapproval” of the
officer’s actions constitute protected speech, noting that police “may
not exercise the awesome power at their disposal to punish individuals
for conduct that is . . . protected by the First Amendment.” 395 The
Supreme Judicial Court of Maine noted that police officers “must
exercise the greatest degree of restraint in dealing with the public,”
holding that the “nature of the experience, training and
responsibilities of police officers” should be considered when deciding
whether conduct amounts to fighting words. 396 An Alabama court
found that, since officers encounter offensive language and conduct on
a regular basis and that they are trained to handle “potentially volatile
situation[s] without physical retaliation,” words or gestures that might
provoke an ordinary person to respond violently do not necessarily
amount to fighting words when directed toward an officer. 397 These
cases do not hold that any and all speech directed toward a police
officer is protected; rather, they suggest that the fact that a trained
police officer is involved in an encounter is an important
consideration when determining whether an individual’s conduct
constitutes fighting words. In other words, a court might reach a
different conclusion under the fighting words doctrine in a case
involving an encounter between two citizens and a case involving a
citizen and a police officer.
emphasized that police officers “may not exercise their authority for personal motives,
particularly in response to real or perceived slights to their dignity.” 110 F. Supp. 2d
at 1107. Addison DeBoi was awarded $3000, to be paid by the Mobile, Alabama
Police Department, after being arrested for disorderly conduct for making an obscene
gesture at two police officers who were sitting in their car. See Susan Daker, Motorists
Who Made Obscene Gesture Awarded $3,000: Police to Pay $3K to Angry Motorist,
MOBILE REG., Aug. 5, 2007, at A6 (finding against Police Department, Mobile County
District Judge stated that police officers must have “thicker skin” than members of
general public).
394 Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir. 2001) (quoting City of
Houston v. Hill, 482 U.S. 451, 461 (1987); Posr v. Court Officer Shield No. 207, 180
F.3d 409, 415 (2d Cir. 1999)).
395 Duran, 904 F.2d at 1374, 1378.
396 John W., 418 A.2d at 1107.
397 H.N.P., 854 So. 2d at 632.