Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1459
Similarly, the Model Penal Code, in its disorderly conduct
provision, 398 offers three justifications for distinguishing encounters
with police officers from those involving ordinary citizens. First, it
improves the overall prestige of law enforcement if officers take a
“conservative approach to penalizing petty wounds to policemen’s
sensibilities,” because hostility toward the police often arises when
individuals feel that officers are abusing the discretionary power given
to them through disorderly conduct statutes. 399 Second, the drafters of
the Code recognized “the special circumstances of the policeman’s
calling and the likelihood that even his lawful actions will provoke
disorderly conduct by arrestees.” 400 In other words, the nature of
police work is especially likely to result in altercations in which
outraged individuals use offensive or abusive language or gestures,
and police officers frequently must deal with “the most unruly and
unrefined elements of the population.” 401 Third, the drafters’ Official
Comments discuss Justice Powell’s concurrence in Lewis v. New
Orleans, noting that it is reasonable to expect a police officer, whose
job is to preserve order, to be least susceptible to provocation. 402 The
drafters suggest that states wishing to exclude cases involving police
officers from the disorderly conduct statute should add language
explicitly stating that the provision does not apply to words addressed
to a police officer “unless it would deter an officer of reasonable
firmness from carrying out his duties.” 403 Thus, states following the
Model Penal Code approach would exclude most instances of
individuals using the middle finger gesture toward police officers from
the scope of their disorderly conduct provisions.
Some courts have rejected the idea that police officers should be
held to a higher standard than average citizens when faced with the
middle finger gesture or offensive language. 404 For example, a federal
district court in Pennsylvania stated:
398
MODEL PENAL CODE § 250.2 cmt. 7 (1962).
399 Id.
400 Id.
401 Id.
402 Id.
403 Id.
404 See, e.g., State v. Groves, 363 N.W.2d 507, 510 (Neb. 1985) (“We specifically
reject the . . . concurrence of Mr. Justice Powell in Lewis v. City of New Orleans . . .
wherein it is suggested that the words here used cannot be fighting words when
directed at a police officer because he is trained to accept such abuse without violent
reaction.” (citation omitted)). The court held that the defendant’s insults, including
“fuckhead” and “motherfucker,” were directed to a police officer and constituted
fighting words. Id.