Digitus Impudicus: The Middle Finger and the Law - Wired

1410 University of California, Davis [Vol. 41:1403
meaning has remained relatively constant over time, 39 the middle
finger gesture — like the f-word 40 — has become part of the American
vernacular and, in the process, shed its “taboo status.” 41 One
newspaper reporter recently complained that the excessive use of the
gesture is causing it to lose its offensive impact, lamenting that “[o]ur
most precious obscene gesture is being overused, abused, and
ultimately ruined”; 42 another lamented, “Sad to say, the bird just
doesn’t do the trick anymore.” 43 Similarly, a state appellate court
found that, while there was a “period of time in our cultural milieu
when the [word ‘asshole’] may well have been inherently
finger is considered a “provocative finger,” roughly equivalent to the middle finger.
Id. In the United States the same day on which the U.S. Senate passed the “Defense of
Decency Act” by a vote of 99 to 1, a national controversy erupted when Vice President
Richard Cheney emphatically told Vermont Senator Patrick Leahy to — as
paraphrased by one commentator — “go and attempt an anatomical impossibility.”
Christopher Hitchens, A Very, Very Dirty Word, SLATE, July 6, 2004,
http://www.slate.com/id/2103467. Leahy and other Democrats recently had
questioned whether Cheney, the former chief executive of defense contractor
Halliburton Company, had improperly assisted the company’s successful bids for
reconstruction contracts in Iraq. See Helen Dewar & Dana Milbank, Cheney Dismisses
Critic with Obscenity: Clash with Leahy About Halliburton, WASH. POST, June 25, 2004,
at A4, available at http://www.washingtonpost.com/wp-dyn/articles/A3699-
2004Jun24.html; Richard W. Stevenson, Cheney Owns up to Profanity Incident and Says
He ‘Felt Better Afterwards,’ N.Y. TIMES, June 26, 2004, at A10, available at
http://www.nytimes.com/2004/06/26/politics/campaign/26cheney.html?.
39 See infra Part I.A.
40 At least two scholarly legal articles have addressed the cultural and legal
significance of the word “fuck.” See generally Robert F. Blomquist, The F-Word: A
Jurisprudential Taxonomy of American Morals (In a Nutshell), 40 SANTA CLARA L. REV.
65 (1999); Christopher M. Fairman, Fuck, 28 CARDOZO L. REV. 1711 (2007).
41 Irvine, supra note 4. Similarly, the attorney for a middle school student who
gave the finger to his school principal argued to the South Dakota Supreme Court that
the f-word is more common than it was in the past and that it is losing its shock value.
Teen Asks S.D. High Court to Overturn Disorderly Conduct Conviction, ASSOCIATED
PRESS, Mar. 29, 2002, available at http://www.freedomforum.org/templates/
document.asp?documentID=15983 [hereinafter S.D. High Court]. In another case, an
Idaho Supreme Court justice recently argued that a woman’s speech did not constitute
fighting words where the woman shouted “shut your fucking mouth, you bitch” to
her daughter’s friend. State v. Hammersley, 10 P.3d 1285, 1287, 1291-92 (Idaho
2000) (Kidwell, J., dissenting). In a dissenting opinion, the justice noted that the
frequent appearance of these epithets in written and spoken communications negates
their inflammatory nature. Id. at 1291. The justice emphasized that, although the
woman’s words were not acceptable in polite society, they did not form an adequate
basis for a criminal conviction. Id. at 1291-92.
42 Hyden, supra note 29.
43 See James Werrell, When It Comes to Gestures, Bird Is the Word, HERALD (Rock
Hill, S.C.), Feb. 28, 2003, at 7A.