Digitus Impudicus: The Middle Finger and the Law - Wired

1476 University of California, Davis [Vol. 41:1403
socially acceptable conduct, they should expect to encounter offensive
speech. 480 As with police officers, 481 society does not expect teachers
to tolerate severely abusive language or conduct, but proper training
and their experience with young adults should prepare them to endure
distasteful language or behavior. 482 School officials have been given
broad discretion in deciding whether and how to regulate student
speech. With this power comes an obligation to safeguard the First
Amendment rights of young people, because the “vigilant protection
of constitutional freedoms is nowhere more vital than in the
community of American schools.” 483
C. The Middle Finger in Court
[F]ree speech and fair trials are two of the most cherished policies of
our civilization, and it would be a trying task to choose between them. 484
Using the middle finger gesture in a public place almost always
constitutes a valid exercise of free speech and, as a general matter,
should not be a punishable offense. This Article has argued that
480 See, e.g., Klein, 635 F. Supp. at 1441 n.3 (acknowledging that several teachers
testified that they had been given the middle finger many times, and concluding that,
when used against teachers, the finger is unlikely to incite violent response); In re
Julio L., 3 P.3d 383, 385 (Ariz. 2000) (noting that school administrator with 18 years
of experience with children had been trained to respond to outbursts by students in
“non-confrontational manner” and to “depersonalize comments” made by students);
Calvert, supra note 348, at 284 (noting that teachers and students perceive speech
differently, and that “one teacher’s threat is another student’s parody”). But see Estes
v. State, 660 S.W.2d 873, 874-76 (Tex. App. 1983) (upholding disorderly conduct
conviction where student gave the finger to high school principal during graduation
ceremony, reasoning that, even though principal was trained to exercise emotional
self-control when interacting with students, average addressee would respond
violently). For a provocative articulation of the argument that judges and school
administrators should consider the context in which student speech occurs, see
Richards & Calvert, supra note 466, at 1109-12. Professors Richards and Calvert
discuss the prevalence of violent and profane language and imagery in teen pop
culture, and argue that judges should not ignore this social reality by removing violent
or offensive language from the context of modern teen culture. Id.
481 See supra Part III.A.
482 See, e.g., Klein, 635 F. Supp. at 1441-42 n.4 (noting that it is unlikely that
professional integrity or personal resolve of teachers will “dissolve . . . in the face of
the digital posturing of [a] splenetic, bad-mannered little boy”).
483 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969)
(quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960)); see also Chemerinsky, supra
note 441, at 545 (arguing that “[s]chools cannot teach the importance of the First
Amendment and simultaneously not follow it”).
484 Bridges v. California, 314 U.S. 252, 260 (1941) (Black, J.).