Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1411
inflammatory,” that word has lost its taboo status and, on its own,
could not support a disorderly conduct conviction. 44 A commentator
recently argued that the word “sucks” “has become untethered from
its past and carries no tawdry implications for those who use it.” 45
Another found that the term “slut” is used so often among teenagers
that many use it “affectionately and in jest among friends,” and
observed that the term may be shedding its status as a slur. 46
While the preceding stories may seem innocuous and perhaps even
humorous, they illustrate the alarming fact that individuals who use
the middle finger run the risk of arrest, prosecution, fines, and
possibly incarceration, despite the fact that the gesture often serves as
a nonviolent means of releasing stress or expressing frustration. 47 The
criminal law generally aims to prohibit serious harm to persons,
property, or the state. 48 Nonetheless, our laws have criminalized acts
that go well beyond “fundamental offenses,” to include behavior that
threatens highly intangible harms “about which there is no genuine
consensus,” or even behavior that causes no tangible harm to others. 49
44 Cavazos v. State, 455 N.E.2d 618, 620-21 (Ind. Ct. App. 1983) (reversing
disorderly conduct conviction where woman called police officer “an asshole”). But
see Elizabeth Austin, A Small Plea to Delete a Ubiquitous Expletive, U.S. NEWS & WORLD
REP., Apr. 6, 1998, at 58 (observing that, “[d]espite its near universality, the ‘F’ word
remains a fighting word”).
45 See Seth Stevenson, Suck It Up, SLATE, Aug. 2, 2006, http://www.slate.com/
id/2146866.
46 See Stephanie Rosenbloom, The Taming of the Slur, N.Y. TIMES, July 13, 2006, at
G1.
47 See, e.g., Angier, supra note 27 (noting that cursing is “a coping mechanism”
and means of reducing stress for many individuals and underappreciated form of
anger management). But see Austin, supra note 44, at 58 (“[P]ublic use of the
[f-]word is a prime example of the ‘broken window’ theory of social decay. When we
put private frustrations and the right to be foulmouthed ahead of public order and
civility, we coarsen society and risk an avalanche of rage and violence.”).
48 See SANFORD H. KADISH, The Crisis of Overcriminalization, in BLAME &
PUNISHMENT: ESSAYS IN THE CRIMINAL LAW 21, 21 (1987).
49 See id. at 22-28. Examples of activities prohibited on moral grounds in the
absence of harm to society include pornography, gambling, drug use, and homosexual
and heterosexual conduct. See Bernard E. Harcourt, The Collapse of the Harm
Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 110, 193 (1999) (discussing legal
enforcement of morality and role of harm principle in determining whether to impose
criminal sanctions on behaviors or activities, and concluding that “there is probably
harm in most human activities and, in most cases, on both sides of the equation — on
the side of the persons harmed by the purported moral offense, but also on the side of
the actor whose conduct is restricted by the legal enforcement of morality”). Arguing
on behalf of a South Dakota middle school student who was convicted of disorderly
conduct for giving the finger and mouthing “f- you” to his principal, attorney Marcia
Brevik told the court that it is not “a legitimate interest of state government . . . to