Constitution Daily

Smart conversation from the National Constitution Center

Is middle finger protected by the Constitution?

January 11, 2013 by Amy E. Feldman


A New York man, angry about a speed trap, extended his middle finger to the police officer to express his displeasure, and was subsequently arrested.

A plaque with the First Amendment, at Philadelphia's Independence Mall. Source: Kyle Dickson (Flickr).

So how is the man protected by the Constitution?

The police officer, who apparently has never visited a playground, or watched television, or had any human interaction, said that he interpreted the gesture as a sign that perhaps there might be a domestic dispute in the car and went to see if he could provide help.

And by “help”, the police officer meant “arrest the man for disorderly conduct.” The motorist sued, claiming that arresting him for expressing his displeasure was a violation of his civil rights (Swartz, et al v. Insogna, et al.).

So is it your constitutional right to extend a middle finger to a police officer in a gesture meant (as most would understand) as an insult, and a rude one at that?

The First Amendment states that “Congress shall make no law ... abridging the freedom of speech.” The spoken word is not the only form of “speech” that the Supreme Court has determined the First Amendment protects. In fact, the First Amendment protects a wide range of symbolic speech, including marching, wearing armbands, and even making expressive gestures.

But that doesn’t mean that the First Amendment gives people the right to say or express anything at any time. There are limits.

It is well-known that a person cannot yell “Fire!” in a crowded theater because of the danger that the speech would cause a panic (Schenck v. United States, 249 U.S. 47, 1919).

Similarly, the Supreme Court has found that the First Amendment doesn’t protect the right to expression used to incite violence--those are called “fighting words” (Chaplinsky v. New Hampshire, 315 U.S. 568, 1942).

But the Supreme Court said that to be considered “fighting words,” the speech would "tend to incite an immediate breach of the peace" by provoking a fight, provided that the speech or expression, “when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction." (Cohen v. California, 403 U.S. 15, 1971).

If coupled with aggressive movement (like a move to jump someone), the extended middle finger could lead to arrest. Unless there is an additional aggressive action along with the middle finger gesture, (and the New York motorist showed no additional aggression), simply raising the middle finger would not count as “fighting words.”

But an obscene expression is also not protected by the First Amendment.

Isn’t the middle finger gesture obscene? Nope. Rude and obnoxious, undoubtedly. But to be classified as “obscene” under constitutional law, the speech has to “appeal to a prurient interest” (Miller v. California, 413 U.S. 15, 1973)—in other words, it has to be sexual in nature.

Even though the police officer said he “misinterpreted” the middle finger as a potential cry for help in a domestic dispute, even he did not try to argue that the middle finger was, in fact, meant to be a sexual gesture.

So it’s not obscene by legal standards. As a result, the appeals court that heard the motorist’s claim found that he was within his protected First Amendment rights to make the gesture without arrest. Whether it was a courteous, pleasant, or well-considered gesture is a different debate entirely.

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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