ChrisWeigant.com

Digitus Impudicus Ruled Constitutionally-Protected Speech

[ Posted Thursday, January 3rd, 2013 – 17:59 PST ]

A federal appeals court has reaffirmed every American's right to communicate with the police solely through the use of the middle finger. You read that correctly: what is variously called "flipping off" or "flipping the bird" or "the one-finger salute" -- even to a police officer -- is indeed protected speech under the United States Constitution. Which is a victory for free speech and the First Amendment.

Now, I'm not coming out in support of flipping cops off on a regular basis or anything, just to be clear. Most cops are hard-working folks and do their jobs bravely and with distinction. Getting flipped off doesn't make their jobs any easier, no matter who is doing so. But while I'm not prone to using this method to communicate with police officers, I have to say that it's nice to know that should I ever find myself in a situation where I did find it appropriate, I would not be arrested merely for doing so. Because, after all, this is America.

The case, Swartz v. Insogna, arose from a traffic cop getting offended and overstepping his authority. Which is why it's a good thing the appeals court overturned the lower court's ruling -- to send the right message. The facts of the case are thus: a guy is riding as a passenger in a car driven by his wife. The car passed a policeman with a radar gun. The car was not speeding (it had a radar detector) and not otherwise breaking any traffic laws. When the car passed by the officer with the speed gun, the guy in the car extended his middle finger to the cop. The car then drove and parked at a relative's house. The two people got out, and the cop car appeared with its lights flashing. The cop got out and told the couple to get back in the car, since it was a "traffic stop." The couple eventually obeyed. Three more officers arrived as backup. A few words were exchanged, and the cops wound up arresting the guy for "disorderly conduct." He went to court a number of times, before the charges were dismissed, and is now counter-suing the cops involved. The lower court threw out the counter-suit, but the appeals court just reinstated it. If that's not enough for you, you can always read the appellate court's decision (which is only 14 pages long, and can be downloaded in PDF form).

What the court's ruling says, in essence, is that the traffic stop itself was unjustified in the first place. Cops can't pull your car over just because you flip them the bird, to put it another way. Or, if that's too colloquial for you, the court helpfully provides a footnote tracing the history of the gesture, complete with erudite references and a genteel Latin term to use:

See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).

I'm sure that bit about the first recorded use in America being between Boston and New York baseball teams will surprise exactly nobody. Ahem. The entire decision of the case is worth reading, if only for such amusing references.

Kidding aside, however, here is how the court dealt with the official excuse Richard Insogna (the police officer) gave for pulling John Swartz's car over in the first place:

The only act Insogna had observed prior to the stop that prompted him to initiate the stop was John's giving-the-finger gesture. Insogna acknowledged in his deposition that he had not observed any indication of a motor vehicle violation. He stated, somewhat inconsistently, that he thought John "was trying to get my attention for some reason" and that he "was concerned for the female driver."

Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But 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.

Personally, I always love it when judges exhibit such snark, even with such stylized legal language. Allow me to translate that last paragraph into what the judge was likely thinking when it was written:

No cop in his right mind is going to interpret getting flipped off as a distress signal, buddy. Sorry, but that just doesn't pass the smell test. After all, anyone in the act of or planning illegal behavior would be a complete moron to flip off a cop either during or just prior to such an act. Do you seriously expect us to believe such horse puckey, Officer? Now get back out there and do your job, and if someone flips you off, then next time just ignore it, OK?

Well, perhaps that's a bit too far in the other direction. But (again, kidding aside) this case is not just highly amusing but also is an important judicial upholding of our rights as American citizens. That First Amendment is there for a reason. It is to protect offensive and rude speech. Nice and unprovocative speech has never needed protection, when you stop and think about it. It's only speech which offends someone which ever makes it into court.

And -- once again -- I'm not advocating everyone go out and flip off the next cop you see. It's not a smart thing to do, in normal circumstances. Well, it's not smart in any circumstances, but there are certain circumstances when it could be considered entirely justified. While I wouldn't draw that line at a cop popping speeders with a radar gun, it's a purely subjective thing. I don't decide for other citizens, just as they don't decide for me. Flipping off cops is dangerous because most cops are smart enough to find some other reason to pull you over, that a judge will fully approve of -- which is the real danger in expressing yourself in such a fashion.

So while it's best to save such an extreme gesture for extreme circumstances -- especially with cops -- it is indeed nice to know that when you bust out the old digitus impudicus to the face of governmental authority, that you are fully within your constitutional rights as an American in doing so.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

21 Comments on “Digitus Impudicus Ruled Constitutionally-Protected Speech”

  1. [1] 
    Elizabeth Miller wrote:

    So, how would a passenger in a car who is in distress at the hands of the driver get the attention of a police officer who is quickly and unexpectedly passing by in traffic?

    The passenger in distress doesn't have much time to think about what kind of sign he or she could give and they don't want to alert the driver to it ...

    Just thinking out loud ...

  2. [2] 
    Michale wrote:

    That First Amendment is there for a reason. It is to protect offensive and rude speech.

    And yet, when Muslims get offended, the Left can't jump fast enough to censor the speech that offended them.. Can't condemn it fast enough as "Hate Speech"...

    Can ANYONE explain this inconsistency??

    "Why the two orders, Colonel? If you gave an order that Santiago wasn't to be touched, why would his life be in danger? Why would it be necessary to transfer him off the base?"
    -Tom Cruise, A FEW GOOD MEN

    And -- once again -- I'm not advocating everyone go out and flip off the next cop you see. It's not a smart thing to do, in normal circumstances.

    The problem is, once you get the attention of a cop, they will likely find SOMETHING to ding ya with.. This asshole was lucky that this particular cop wasn't particularly imaginative to come up with something.

    Although, kudos to the cop for at least being honest..

    In the military, we always had "Provoking Speeches And Gestures" to fall back on, which WAS an apprehension-able offence.. :D

    Ahhhh the joys of body slamming a scumbag to the ground, cuff'n and stuff'n and then performing a screen test..

    Ahhhhh the memories.. :D

    Michale

  3. [3] 
    Michale wrote:

    it is indeed nice to know that when you bust out the old digitus impudicus to the face of governmental authority, that you are fully within your constitutional rights as an American in doing so.

    Does that mean I can flip off Obama when he comes to town???

    Yea, let's see how well THAT flies, eh?? Condemnation from the Hysterical Left would be brutal and unforgiving... :D

    Michale

  4. [4] 
    Michale wrote:

    CW,

    And yet, when Muslims get offended, the Left can't jump fast enough to censor the speech that offended them.. Can't condemn it fast enough as "Hate Speech"...

    Can ANYONE explain this inconsistency??

    For the record, CW, I am not saying you have ever come down against Free Speech in this regard.

    While you have remained silent whenever that issue has arisen, I assumed it was because you agreed with my position. Especially in light of you stating unequivocally that "That First Amendment is there for a reason. It is to protect offensive and rude speech. Nice and unprovocative speech has never needed protection, when you stop and think about it.

    Which is exactly what I have said time and again whenever someone has offended the poor Muslims and rank and file Weigantians want to clap the offender in irons or cut out his tongue.. Or both!!

    Just wanted to make sure I was clear on that point..

    Michale

  5. [5] 
    michty6 wrote:

    Can ANYONE explain this inconsistency??

    Police aren't considered a 'protected group' under hate crime laws. There. That was easy.

  6. [6] 
    Michale wrote:

    Police aren't considered a 'protected group' under hate crime laws. There. That was easy.

    I am constrained to point out that police ARE a protected group insofar as other laws go..

    It's the difference between murder and Capital Murder..

    Irregardless, it would seem that the Hate Crime laws are in conflict with the First Amendment..

    If I want to call Muhammed a pedophile and draw a picture of him boinking the barnyard pig, then I have a RIGHT to do so, ANY hate crime law be damned..

    What you seem to be saying is in direct conflict with what CW wrote..

    " "That First Amendment is there for a reason. It is to protect offensive and rude speech."

    You seem to want to add... "... unless offensive and/or rude speech is directed towards a 'protected group'."

    Guess what??

    That won't fly in the US... Or any civilized country...

    Rude and/or offensive speech is protected by the First Amendment here in the US..

    REGARDLESS of who it is directed at...

    Michale

  7. [7] 
    michty6 wrote:

    That won't fly in the US... Or any civilized country...

    Lololol I've got bad news for you. In terms of 'civilized countries' the US is in the minority with regards to protection against hate speech.

    But that's no surprise as the US is in a minority with a lot of these things since it still draws on a document written in the 18th century for a bunch of it's stupid laws instead of progressing forward with the rest of the world into the 21st century...

  8. [8] 
    db wrote:

    CW,

    "That First Amendment is there for a reason. It is to protect offensive and rude speech."

    Need to disagree. The First Amendment protects POLITICAL speech. We can debate any political issue or hold any political viewpoint & have it Constitutionally protected. Except advocacy of violence.

    "Free Speech" is a misnomer. There have been always laws against libel, slander, or defamation. Fraud & false Advertising are also restricted. Obscenity isn't protected. (not to get too far into it, you have a right to publish obscene materials to willing receivers only) Hate speech is included here as well.

    BTW, I think G. Julius Caesar refers to it as "the ancient gesture of defiance" in his "Gallic Wars".

  9. [9] 
    Michale wrote:

    Lololol I've got bad news for you. In terms of 'civilized countries' the US is in the minority with regards to protection against hate speech.

    You say "hate speech" I say "free speech"..

    But that's no surprise as the US is in a minority with a lot of these things since it still draws on a document written in the 18th century for a bunch of it's stupid laws instead of progressing forward with the rest of the world into the 21st century...

    Yea, shooting guns in the air for celebration, forcing women to outlandish costumes, legalizing rape and beheading people for being offensive is REALLY 21st century...

    If THAT is the 21st century, then I am happy to stay in the 18th... :D

    Michale...

  10. [10] 
    Michale wrote:

    db,

    "Free Speech" is a misnomer. There have been always laws against libel, slander, or defamation. Fraud & false Advertising are also restricted. Obscenity isn't protected. (not to get too far into it, you have a right to publish obscene materials to willing receivers only) Hate speech is included here as well.

    No mention of offensive speech there..

    Unless you, like michty, think that offensive speech = hate speech..

    Michale

  11. [11] 
    michty6 wrote:

    Yea, shooting guns in the air for celebration, forcing women to outlandish costumes, legalizing rape and beheading people for being offensive is REALLY 21st century...

    Wow I didn't know we did any of the stuff in the UK. Well I guess it has been a few months since I've been there, I guess things must have changed a lot under our new Tory Government.

    Unless you, like michty, think that offensive speech = hate speech..

    Who is this michty character you refer to here? Must be someone copying my username in an effort to slander me by saying such stupid statements!

  12. [12] 
    Michale wrote:

    Wow I didn't know we did any of the stuff in the UK.

    Newsflash for ya, Sunny Jim.. The UK hasn't been "the rest of the world" since we kicked ya'alls asses back in the 1770s... :D

    Who is this michty character you refer to here?

    Uhh, that would be you..

    You are on record as stating that offensive speech against a "protected" ground = Hate Speech....

    Michale

  13. [13] 
    michty6 wrote:

    Newsflash for ya, Sunny Jim.. The UK hasn't been "the rest of the world" since we kicked ya'alls asses back in the 1770s...

    Last time I checked we were part of the "civilised world". In fact, depending on how you define "civilised world", the US is miles behind when it comes to hate speech. Just wikipedia hate speech and read through the list of 'civilised' countries and how we deal with this crime...

    But don't worry, you've got bigger fish to fry before 'hate crime' is a major issue. Healthcare is (almost) sorted for one...

    Uhh, that would be you..

    You are on record as stating that offensive speech against a "protected" ground = Hate Speech....

    Nope this still sounds like this other 'michty' guy, although at least his definition is getting gradually closer to the real one I use every time you write it ;) I would suggest to this other michty guy that you are quoting that he should consider the 'offensive speech' part of his definition as it is incorrect...

  14. [14] 
    Michale wrote:

    Last time I checked we were part of the "civilised world".

    Which such restrictive free speech laws, I don't think so.. :D

    Nope this still sounds like this other 'michty' guy, although at least his definition is getting gradually closer to the real one I use every time you write it ;)

    You tap dance better than anyone on here..

    You are on record as stating that offensive speech against a protected group is free speech.. As recently as post #5 above..

    I know it. You know it. Everyone else here knows it..

    I would suggest to this other michty guy that you are quoting that he should consider the 'offensive speech' part of his definition as it is incorrect...

    OK, so NOW you are saying that offensive speech directed towards a "protected group" is NOT "Hate Speech"???

    Is THAT what you are saying now???

    Michale

  15. [15] 
    michty6 wrote:

    You are on record as stating that offensive speech against a protected group is free speech.. As recently as post #5 above..

    I know it. You know it. Everyone else here knows it..

    Lolol you have to be kidding. At least if you're going to lie and mis-quote me then do it to a quote that isn't 5 inches up the page for everyone to see! Offensive speech has nothing to do with hate speech - but hate speech can NEVER be against the police as, by definition, they are not and never will be a protected group...

    OK, so NOW you are saying that offensive speech directed towards a "protected group" is NOT "Hate Speech"???

    Is THAT what you are saying now???

    Yup that is what I'm saying now and have never said any different. We go through this whole song and dance every time on this topic because every single time you can't understand the definition of hate speech!

  16. [16] 
    Michale wrote:

    Yup that is what I'm saying now and have never said any different. We go through this whole song and dance every time on this topic because every single time you can't understand the definition of hate speech!

    OK So, we agree...

    I can say that Muhammed is a pedophile and draw a picture of him boinking a pig in the barnyard and it's not Hate Speech..

    I can even make a YouTube video of mohammed in various sexual positions with a variety of animals and it's not Hate Speech...

    I am glad you finally saw reason...

    Congrats...

    be against the police as, by definition, they are not and never will be a protected group...

    In some laws, they are..

    Murder?? Capital Murder?? Ringing any bells???

    Now, I will agree that, in speech, cops are not a protected group..

    Michale

  17. [17] 
    michty6 wrote:

    I can say that Muhammed is a pedophile and draw a picture of him boinking a pig in the barnyard and it's not Hate Speech.

    Yes you can do this to me. I am not a protected group for this purpose.

    I can even make a YouTube video of mohammed in various sexual positions with a variety of animals and it's not Hate Speech...

    Well you actually could do this and sit-back as the consequences of you doing this don't affect you at all. I would argue that you shouldn't be allowed to do this. Just as you shouldn't be allowed to make anti-semitic videos that incite violance against Jews.

    Murder?? Capital Murder?? Ringing any bells???

    I believe they are protected under these laws on exactly the same footing as everyone else. A 'protected group' by it's very nature is afforded some particular protection that applies to that group only.

  18. [18] 
    Michale wrote:

    Just as you shouldn't be allowed to make anti-semitic videos that incite violance against Jews.

    But I wouldn't be making any video that incited violence against Muslims..

    Just like the guy who made the Anti-Islam video didn't make a video that incited violence AGAINST Muslims..

    He made a video that RIDICULED Muslims and THAT incited violence FROM Muslims..

    I completely agree that FREE SPEECH doesn't cover speech or videos that incite violence AGAINST people. ANY people, "protected" or not...

    But we're not talking about that kind of speech..

    We are talking about speech that is offensive to a group of people.. THAT is the very definition of Protected Free Speech..

    The fact that the offensive speech prompts this particular uncivilized group to be violent??

    Well, that is solely and completely on the uncivilized group...

    The latter is, in NO WAY, excused by the former..

    I see your mistake now and I understand a little more where you are coming from..

    I believe they are protected under these laws on exactly the same footing as everyone else. A 'protected group' by it's very nature is afforded some particular protection that applies to that group only.

    When you kill Joe Blow off the street, it's Murder....

    When you kill Officer Joe Blow, it's Capital Murder..

    Cops are a protected group insofar as killing one results in a much harsher penalty than killing any old civilian..

    Michale

  19. [19] 
    db wrote:

    Michale, from #10 above.

    Offensive speech is not, of necessity, hate speech. I'd cite Mitt Romney's 47% comments as an example. Offensive, but not inciting hatred or violence. He had an absolute right to say those things.

    But was it smart?

    Does anyone have the right to make a video that ridicules Christians, Jews, or Muslims?

    But is it smart? Does it incite violence?

    The other consideration is that in many places in the world, they do not have a free press. Residents in those countries are used to having all published material come from, & be approved by, the Ministry of Information. Thus when they see a video from America, they assume it is the official position of the American Government.

    So, "Well, that is solely and completely on the uncivilized group...".

    No.

    It's on the unwise makers of the video who made their video knowing that it could incite some to anti-American violence.

    I do not have a concrete answer; but it strikes me that if you can restrict the incitement to violence of the Speaker's Group then you equally ought to be able to restrict an incitement of another group.

  20. [20] 
    Michale wrote:

    Does anyone have the right to make a video that ridicules Christians, Jews, or Muslims?

    But is it smart? Does it incite violence?

    Only in ONE of those groups..

    So, if two groups can control themselves and one group cannot..

    Where does the problem lie??

    With the offensive speech??

    Or with the group??

    I think the answer is clear...

    The other consideration is that in many places in the world, they do not have a free press. Residents in those countries are used to having all published material come from, & be approved by, the Ministry of Information. Thus when they see a video from America, they assume it is the official position of the American Government.

    Their ignorance is the problem..

    Not our freedoms..

    So, "Well, that is solely and completely on the uncivilized group...".

    No.

    Yes..

    If I call you every vile name in the book and you deck me, guess who's going to jail??

    Mere words are not sufficient justification for violence..

    At least, not in civilized societies...

    It's on the unwise makers of the video who made their video knowing that it could incite some to anti-American violence.

    While I would dispute that point, it's not relevant to the discussion.

    unwise =! illegal

    I do not have a concrete answer; but it strikes me that if you can restrict the incitement to violence of the Speaker's Group then you equally ought to be able to restrict an incitement of another group.

    You lost me on this point..

    The SCOTUS has held that how a person or a group might react to speech is not sufficient cause to restrict that speech, as long as all other caveats are observed..

    In other words, it's perfectly permissible to restrict speech in a FIRE/THEATER scenario...

    But saying that I can't call Muhhammed a pedophile and a deflower'er of dogs because someone on the other side of the planet MIGHT be offended enough to do violence?? Not permissible...

    If a person or group is offended enough to do violence, then the problem is WITH that person/group..

    NOT with the speaker...

    It's the person/group that needs to be restricted/restrained/shot..

    NOT the speaker..

    This is how it is in civilized societies..

    OK, OK, Maybe not the "shot" part.. That's just my own personal preference.. :D

    Michale

  21. [21] 
    Michale wrote:

    OK, OK, Maybe not the "shot" part.. That's just my own personal preference.. :D

    I know that sounds kinda rough, but consider it..

    If I call Muhhammed a Stinky PoopHead and some asshole wants to behead me for it, I would like that person shot.

    Preferably, BEFORE he beheads me... :D

    Michale

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