Is Raising The Middle Finger Constitutionally Protected Free Speech?

A New York man arrested for disorderly conduct after giving the middle-finger salute to a police officer has won reinstatement of his civil rights lawsuit in a decision by the Second Circuit Court of Appeals.

In May 2006, John Swartz was a passenger in a car driven  in St. Johnsville, N.Y. At an intersection, Mr. Swartz  saw a police car using a radar device to catch speeders and flipped off the police to express displeasure at the speed trap.

Officer Richard Insogna took offense at the gesture, pulled the car over and asked for the driver’s  license and registration.  When Mr. Swartz told the driver not to comply, Officer Insogna allegedly said: “Shut your mouth, your ass is in enough trouble.”

Swartz got out of the vehicle and walked toward the officer allegedly to explain his actions. Officer Patrick Collins who was with Officer Insogna then said: “That does it, you’re under arrest.”

He charged him with disorderly conduct; the charges were later dropped. The Court said, ” The nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.” The full opinion can be found at: Swartz v. Insogna.. For those who are really interested in the middle finger as a topic there is an interesting law review article by Professor Ira Robbins. The abstract is as follows:

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of peace statutes and ordinances.

This article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm, but use of the middle finger simply does not raise these concerns.” Click to see the full article.

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