Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1461
whether offensive language constitutes fighting words based on the
identity of the recipient is “unwarranted and unsupported” by First
Amendment jurisprudence. 411 These courts reject the premise that
police officers should “remain stoic in the face of vitriolic comments”
that would elicit a violent response from an average citizen; 412 thus,
the result of a fighting words analysis will be the same whether or not
a police officer is involved in the encounter. However, because the
middle finger gesture alone arguably does not fall within the scope of
the fighting words doctrine, individuals should not be arrested merely
for giving the finger to a police officer.
The best approach is illustrated by a decision of the Supreme Court
of North Dakota reversing the conviction of a man who, during a
confrontation with police officers, gave them the middle finger and
said, “Fucking, bitching cop,” “Fuck you,” “Fuck my ass,” and “You
don’t know who you’re fucking with.” 413 Finding that there was “no
evidence that [the defendant’s] language or conduct tended to incite
an immediate breach of the peace,” based on testimony from several
witnesses who said that they would not have reacted violently to the
defendant’s words and gesture, the court overturned the disorderly
conduct conviction. 414 The court noted that “whether particular
words are ‘fighting words’ depends on the circumstances of their
utterance and the fact that the words are spoken to police is a
significant circumstance.” 415 This approach gives judges and juries
flexibility in determining whether a defendant’s conduct amounts to
fighting words, while still recognizing that a police officer’s duties,
obligations, and training warrant special consideration when making
that determination. Given that the middle finger gesture alone should
not support a disorderly conduct conviction (especially when it is
directed toward a police officer), this approach allows individuals to
criticize the police in a nonviolent way without risking arrest and
prosecution.
411 Id.
412 Pringle v. Court of Common Pleas, 604 F. Supp. 623, 626 (M.D. Pa.) (denying
habeas relief where defendant had been charged with disorderly conduct after she
became upset when officers were arresting her friend with what she believed to be
excessive force and called officers “goddamn fucking pigs,” with crowd of 30 to 50
people watching), rev’d on other grounds, 778 F.2d 998 (3d Cir. 1985).
413 Schoppert, 469 N.W.2d at 809.
414 Id. at 812-13.
415 Id. at 812 (quoting Lewis v. New Orleans, 415 U.S. 130, 135 (1974) (Powell, J.,
concurring)).