Giving the middle finger gesture to a police officer has to led to a surprising array of litigation as sometimes police officers react to the offensive gesture by arresting the individual.
While officers have claimed that the gesture is a form of fighting words, courts routinely have rejected that argument.
Instead, when individuals have brought civil rights lawsuits, claiming that they were retaliated against for their protected speech, courts have ruled that the individuals have a clearly established right not to be retaliated against with an arrest for engaging in the gesture.
Courts have ruled ‘flipping the bird’ is protected expressive conduct
The gesture, akin to directing the f-word toward another person, goes back to Greek and Roman times and is often referred to as giving the finger or flipping the bird. Professor Ira P. Robbins concluded in“Digitus Impudicus: The Middle Finger and the Law,” published in 2008, that while the expression is vulgar, it does not mean that it is illegal. Specifically, he argues that the gesture does not meet the legal standard of obscenity as outlined in the U.S. Supreme Court’s decision in Miller v. California (1973), nor does it constitute a form of “fighting words” as outlined in Chaplinsky v. New Hampshire (1942), at least when it is unconnected to other actions and words specifically designed to provoke violence. In other words, the gesture is a protected form of expressive conduct under the First Amendment.
Many courts have established that officers violate the civil rights of individuals when they arrest them for such expressive conduct. For example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 2000) that an individual had a First Amendment right to flip off a police officer and curse at him. The appeals court explained: “Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech — such as stopping or hassling the speaker — is categorically prohibited by the Constitution.”
Similarly, in Nichols v. Chacon, 110 F.Supp. 2d 1099 (W.D. Ark. 2001), a federal district court in Arkansas ruled that an officer violated an individual motorist’s First Amendment rights by arresting him for giving the officer the middle finger. The court explained that “arrests have been held to be without probable cause when based on obscene gestures and/or verbal challenges to the police.”
Courts: Schools can punish student for middle finger gesture
Case law involving school students is somewhat more restrictive than that governing adults. In Tinker v. Des Moines Independent School District (1969), the Supreme Court upheld the rights of students to wear black arm bands in protest to the Vietnam War, but in Bethel School District No. 403 v. Fraser (1986) the high court permitted punishment of a student who delivered a speech that could be considered vulgar, offensive or lewd.
Based on such precedents, it follows that schools should be able to suspend or punish students who make such gestures in school where they could disrupt the learning process or interfere with the educational mission, but perhaps not outside school premises. In Klein v. Smith 635 F.Supp. 1440 (D. Me.), a federal district court judge in Maine agreed and ruled that public school officials exceeded their authority when they suspended a student for 10 days for giving the finger to a teacher at a restaurant off-campus. The district court explained that the kid’s poor behavior was “too attenuated” from school activities to support discipline.
The courts also may be able to use their powers of contempt to punish individuals who use such gestures in court against a judge or other judicial officer, Robbins wrote. He also noted that, in part because of the ambiguity of Federal Communications Commission regulations, reflected in part in FCC v. Pacifica Foundation (1978), which permitted punishment for the airing of seven dirty words, broadcasters often choose to censor the gesture rather than face possible punishment.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009 and most recently updated by David L. Hudson in December 2023.