Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1479
In a concurring opinion, Justice Powell emphasized that the defendant
had not directed the phrase toward the judge or a court officer; he also
noted that the judge had not warned the defendant that his language
was inappropriate before issuing the contempt citation. 495 Implicit in
these opinions is the suggestion that the result may have been
different had the defendant specifically directed his remark (or,
presumably, the middle finger gesture) to the trial judge.
Similarly, a Massachusetts appellate court overturned a contempt
conviction where a woman gave the finger to her alleged abuser as he
exited the courtroom after a judicial proceeding. 496 The court found
that the gesture was a “single, isolated event” that was “not directed at
the judge but rather at the person who the defendant claimed had
beaten and threatened her,” and held that, in these circumstances, her
use of the gesture was not sufficient to warrant a contempt
conviction. 497 An Ohio appellate court overturned a contempt
sanction where a juvenile gave the finger to his mother after the
conclusion of a delinquency hearing. 498 Reasoning that the
administration of justice was not obstructed because the proceeding
had ended and the judge had left the courtroom, the court concluded
that the trial court erred in holding the juvenile in contempt. 499
Although jurisdictions have different statutory provisions, local
court rules, and interpretive case law regarding contempt, most
require the presence of four factors in order to hold an individual in
contempt: (1) misconduct, (2) committed in the presence of or
toward the court (including the judge and other officers of the court),
(3) with the intent to obstruct judicial proceedings, and (4) with the
effect of actual disruption of judicial proceedings. 500 These elements
marks omitted).
495 Id. at 700 (Powell, J., concurring).
496 Commonwealth v. Contach, 712 N.E.2d 100, 100-04 (Mass. App. Ct. 1999).
497 Id. at 103.
498 See In re Philip G., No. 20020009, 2000 Ohio App. LEXIS 2884, at *3-4 (Ohio
Ct. App. June 30, 2000).
499 Id. But see Woody v. State, 572 P.2d 241, 242-43 (Okla. Crim. App. 1977)
(upholding contempt conviction where contemnor gave the middle finger to two
police officers who had testified against him during disorderly conduct trial, despite
contemnor’s argument that judge did not see the gesture and proceeding had ended).
500 See Commonwealth v. Williams, 753 A.2d 856, 861 (Pa. Super. Ct. 2000); see
also State v. Sheahan, 502 N.E.2d 48, 50 (Ill. App. Ct. 1986) (defining contempt as
“conduct which is calculated to embarrass, hinder, or obstruct the court in its
administration of justice or derogate from its authority or dignity, thereby bringing
the administration of law into disrepute”); State v. Friel, 497 A.2d 475, 477 (Me.
1985) (defining contempt as “actual and willful obstruction of the administration of
justice committed in the actual presence of the court”).