Digitus Impudicus: The Middle Finger and the Law - Wired

1478 University of California, Davis [Vol. 41:1403
exercised to punish individuals who use offensive language or the
middle finger gesture in court, 491 not all use of the gesture in court
constitutes contempt. It is difficult to make generalizations about the
precise scope of the contempt power. Not only do contempt statutes,
local court rules, and the case law interpreting them vary from
jurisdiction to jurisdiction, from court to court, and from judge to
judge, but also contempt often is decided summarily and without a
written opinion. 492 With these limitations in mind, this section
examines the contours of the contempt power, discusses the
circumstances in which a judge may lawfully exercise the contempt
power to punish use of the middle finger gesture in court, and briefly
considers policy justifications that support a judge’s ability to eclipse the
First Amendment rights of individuals who use the gesture in court.
In a case involving a defendant who referred to his alleged assailant
as a “chicken shit” during cross-examination, the U.S. Supreme Court
held that a “single isolated usage of street vernacular, not directed at
the judge or any officer of the court, cannot constitutionally support
[a] conviction of criminal contempt.” 493 The Court held that the
defendant’s use of the phrase “chicken shit” — the sole basis for his
contempt conviction — did not “constitute an imminent . . . threat to
the administration of justice,” because the defendant did not disobey a
court order, talk loudly, behave boisterously, or attempt to obstruct
the judge or an officer of the court from performing judicial tasks. 494
Contempt Power, 14 AM. J. TRIAL ADVOC. 243, 248 n.16 (1990) (describing history of
contempt power); Cooke v. United States, 267 U.S. 517, 539 (1925) (“The power of
contempt which a judge must have and exercise in protecting the due and orderly
administration of justice and in maintaining the authority and dignity of the court is
most important and indispensable.”); Ex parte Robinson, 86 U.S. 505 (1873).
The power to punish for contempts is inherent in all courts; its existence is
essential to the preservation of order in judicial proceedings, and to the
enforcement of the judgments, orders, and writs of the courts, and
consequently to the due administration of justice. The moment the courts of
the United States were called into existence and invested with jurisdiction
over any subject, they became possessed of this power.
Id. at 510.
491 See infra notes 500-13 and accompanying text.
492 Rychlak, supra note 490, at 264; see also Illinois v. Allen, 397 U.S. 337, 343
(1970) (noting that “trial judges confronted with disruptive, contumacious,
stubbornly defiant defendants must be given sufficient discretion to meet the
circumstances of each case. No one formula for maintaining the appropriate
courtroom atmosphere will be best in all situations”).
493 Eaton v. City of Tulsa, 415 U.S. 697, 698 (1974).
494 Id. (quoting Craig v. Harney, 331 U.S. 367, 376 (1947)) (internal quotation