Digitus Impudicus: The Middle Finger and the Law - Wired

1484 University of California, Davis [Vol. 41:1403
statement to include direct verbal criticism and challenges to most
government officials, 527 as long as the speech does not rise to the level
of fighting words, obscenity, or defamation. The digitus impudicus
does not fall under any of these exceptions. 528 Thus, the government
cannot constitutionally prohibit its use, except in the limited
circumstances in which such a prohibition is essential to serving the
missions of our educational and judicial systems. While targets of the
gesture may find it impolite, insulting, offensive, vulgar, rude, or
crude, the Supreme Court in Houston v. Hill eloquently stated that “the
First Amendment recognizes, wisely we think, that a certain amount
of expressive disorder not only is inevitable in a society committed to
individual freedom, but must itself be protected if that freedom would
survive.” 529 In other words, even if “[t]hese days, ‘the bird’ is flying
“[t]he freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we distinguish a
free nation from a police state”); Rutzick, supra note 236, at 10 (“To close the door on
the most vigorous political protest would seem to do far more harm in the long run
than the likelihood in the short run of violent reactive conduct [by a public authority
figure] or harm to the ‘sensibilities.’”).
527 Authority figures theoretically are less likely to be provoked to a violent
reaction or to suffer harmed sensibilities than private citizens. See Hill, 482 U.S. at
453, 461 (striking down city ordinance that proscribed “interrupt[ing] a police officer
in the performance of his or her duties”); see also Webster v. City of New York, 333 F.
Supp. 2d 184, 189-92, 201-02 (S.D.N.Y. 2004) (holding that partygoers’ comments
toward police constituted protected criticism of officers’ actions where one
“hysterical” partygoer was “screaming [her] head off,” and several of her companions
loudly questioned whether police had authority to make any arrests during hostile
encounter between police and citizens). Based on the nature of their work, authority
figures — especially police officers — are expected to tolerate some potentially
offensive speech activity. See Lewis v. New Orleans, 408 U.S. 913, 913 (1972)
(Powell, J., concurring) (suggesting that fighting words exception to First Amendment
may apply differently when words are addressed to police officer rather than to
ordinary citizen, because officers are “trained to exercise a higher degree of restraint”);
see also Rutzick, supra note 236, at 10 (“Whatever is assumed about the reaction of the
average individual to offensive words, police are employed to keep the peace rather
than breach it and are assumed to be trained to remain calm in the face of citizen
anger . . . .”).
528 See Sullivan, 376 U.S. at 283 (holding that states may impose liability for
libelous speech in limited circumstances); supra Part II.A (arguing that the middle
finger gesture, when used alone, does not constitute fighting words); supra Part II.B
(arguing that the middle finger gesture does not fall within scope of legal definition of
obscenity).
529 Hill, 482 U.S. at 472.