Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1481
by his behavior. 508 The judge held West in contempt and declared a
mistrial. 509
In one of the most audacious examples of disruptive courtroom
behavior, defendant Dennis Eugene Friel, on trial for “committing
aggravated criminal mischief by damaging the property of various
churches,” placed his fingers in his ears each time the judge spoke to
him, referred to the judge as “crooked,” stuck out his tongue, snorted
and sighed loudly, wandered around the courtroom, arrived at court
forty minutes late, and made “facial grimaces” in the presence of the
judge and jury. 510 During a bench conference, Friel stated that he
“had to piss” and began to walk out of the courtroom. 511 The judge
informed Friel’s attorney that he would not allow Friel to enter and
exit the courtroom at his leisure, whereupon, “directing his actions
toward the bench, Friel lifted his hand with his middle finger pointing
upwards and stated, smirkingly, ‘Next time I will ask to go number
one.’” 512 The judge held Friel in contempt and had him removed from
the courtroom. 513
While the middle finger gesture should be treated as protected
speech in most circumstances, its use in court can disrupt and delay
legal proceedings and jeopardize litigants’ constitutional rights, as the
preceding cases demonstrate. Furthermore, allowing individuals to
use the gesture in court undermines the authority and legitimacy of
the entire judicial system, ultimately eroding the public’s confidence
in the judiciary and our legal system. 514 The right to criticize the
government — including the judiciary — is a critical aspect of our
system of government and should be vigorously protected. 515 So, too,
are the rights of litigants and criminal defendants to a fair and orderly
trial. According to Justice Felix Frankfurter, “Free speech is not so
absolute or irrational a conception as to imply paralysis of the means
508 Id. at 161.
509 Id.
510 State v. Friel, 497 A.2d 475, 476 (Me. 1985).
511 Id.
512 Id. at 477.
513 Id.
514 See Catherine Therese Clarke, Missed Manners in Courtroom Decorum, 50 MD. L.
REV. 945, 1005-08 (1991) (linking courtroom etiquette to public confidence in
judicial system).
515 See, e.g., Bridges v. California, 314 U.S. 252, 270-71 (1941) (finding that “an
enforced silence, however limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and contempt much more
than it would enhance respect,” in case involving out-of-court criticism of legal
proceeding).