Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1409
execution chambers, 35 in advertisements 36 and on magazine covers, 37
and even on the hallowed floors of legislatures. 38 Although its
was “fined an undisclosed amount [by the team] for making an obscene gesture”
during game against Milwaukee Brewers on June 1, 2007). See generally M.J. LOHEED
ET AL., THE FINGER: A COMPREHENSIVE GUIDE TO FLIPPING OFF 56-60 (1998) (providing
numerous examples of the middle finger gesture appearing at sporting events).
34 See, e.g., People v. Meyers, 817 N.E.2d 173, 178 (Ill. App. Ct. 2004) (quoting
judge’s order to court clerk to reflect in record that defendant “flash[ed] the universal
signal of discontent” to judge during criminal proceeding); see also infra Part III.C
(discussing cases in which individuals have received contempt sanctions for using the
middle finger in court). A former police chief related the following story:
Several years ago, I was Chief of Police in Tulsa, Oklahoma. One of my
fearless troops was driving down the street when a young man extended his
middle finger in an obscene gesture, prohibited by the ordinances of the City
of Tulsa. The young man was immediately arrested and charged in Tulsa’s
Municipal Court with violating the ordinance. At a motion hearing the
officer testified; the judge ruled that extending the middle finger was an act
protected by the First Amendment’s freedom of expression . . . and declared
the ordinance as applied to extending the middle finger unconstitutional. As
the young officer was leaving the court room he stopped, turned back and
extended his middle finger while saying, “Thank you very much, Judge.”
E-mail from Harry W. Stege, Chief of Police (Retired), City of Tulsa, Oklahoma, to Ira
P. Robbins, Professor of Law, American University, Washington College of Law (Feb.
5, 2008, 18:06:18 EST) (on file with author).
35 During an “eruption of rage” at his 1995 execution in Arizona, Jimmie Wayne
Jeffers “glared through [a] thick glass window, thrust out his middle finger, and let
loose with a torrent of obscenities.” Kevin Francis O’Neill, Muzzling Death Row
Inmates: Applying the First Amendment to Regulations that Restrict a Condemned
Prisoner’s Last Words, 33 ARIZ. ST. L.J. 1159, 1164 n.24 (2001). The Washington Times
reported that he died with his middle finger still extended. Executed in Arizona, WASH.
TIMES, Sept. 15, 1995, at A13. Likewise, a man executed in Arizona’s gas chamber in
1992 twice gestured at witnesses with a “bitter smile” on his face. Id.
36 See, e.g., Stuart Elliott, When Products Are Tied to Causes, N.Y. TIMES, Apr. 18,
1992, at 33 (reporting that advertisement sponsored by Working Assets Funding
Service showed protestor giving the middle finger gesture, under headline that read,
“Twenty years later, we’ve given people a better way to put this finger to use”). The
ad sought customers for a long distance telephone service that donated one percent of
long distance phone call charges to groups such as Amnesty International,
Greenpeace, and the American Civil Liberties Union. Id.
37 In April 1974, the cover of MAD Magazine featured a photograph of a hand with
the middle finger extended and the words “The Number One Ecch Magazine.” See
LOHEED ET AL., supra note 33, at 20 (discussing and showing magazine cover). Many
distributors and newsstands refused to distribute the issue and the publisher received
hundreds of complaints. The issue now is a collector’s item. Id.
38 See Senator Sorry Over ‘Rude’ Gesture, AGE, Aug. 11, 2005, available at
http://www.theage.com.au/news/national/senator-sorry-over-rude-gesture/2005/08/11/
1123353438298.html (stating that Australian Senator Julian McGauran was forced to
apologize for making “a rude finger gesture in the Senate”). In Australia, the index