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