Paul L. Caron

Monday, March 15, 2010

'The Long Arm of the Law Should Not Extend to the Middle Finger'

Early nominee for legal headline of the year: "The Long Arm of the Law Should Not Extend to the Middle Finger," based on the article by Ira P. Robbins (American), Digitus Impudicus: The Middle Finger and the Law, 41 UC Davis L. Rev. 1403 (2008).  Here is the abstract:

The middle finger is one of the most common 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 floors of legislatures. Despite its ubiquity, however, a number of recent cases demonstrate that 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 U.S. 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 in most situations, with schools and courts as the exceptions.

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If this is what legal scholars are spending time on, we can look forward to another round of budget cuts.

Posted by: mike livingston | Mar 16, 2010 10:14:26 AM

Flipping off someone is no more than telling someone to "go to hell". Arresting someone for this harmless action is a despicable misapplication of the law. I'm afraid we are allowing the government too much power in the smallest things as well as the largest.

Posted by: jgreene | Mar 16, 2010 11:52:47 AM

Where I come from, the middle finger counts as fighting words, deserving of no protection, certainly not by the Constitution, or even by the unintentionally humorous effusions ("digitus impudicus" my ***) of academics apparently bored with all the important questions.

There is a long tradition in English and American law, ignored by lawyers, of "informal" law enforcement by police. This is the real, practical constitution that is shaped by life as it is lived every day. So when an ***hole is stopped for crossing a line, an important social value is being upheld, and it is amazing how so many anti-social characters become meek and mild when confronted in such a way. Now arrest and conviction might be a little Teutonic, but just the stopping itself has great value, and I applaud it.

Of course, if the miscreant doesn't get the message, and extends the offending "digitus" in the constable's direction, well, as we say in Chicago, that's why alleys and billy clubs were made.

Posted by: Hugh Mackie | Mar 16, 2010 12:13:40 PM

And there is a long tradition in American society, confirmed by law, that assault under color of law removed the normal respect provided to the police, and thus they become a criminal by engaging in criminal acts.

In a perfect world there would be no crime. In a less than perfect world, the perpetrator would be shot just before he could commit a crime.

Posted by: Don Meaker | Mar 16, 2010 12:38:28 PM

So...brute force, coercion and laws inhibiting the freedoms of others is a good thing? ...because you got your poor little feelings hurt? When someone flips you off or offers you a bit of back talk, there's usually a reason, and it usually has to do with your interference in the rights and freedoms of others. You want to moderate the behaviors of others but you refuse to moderate your own. ...which is why lawyers are talking about incarcerating people who flip you off.

Keerist, people. Look in the freaking mirror once in awhile, will ya?

Posted by: Warren Bonesteel | Mar 16, 2010 1:15:41 PM

A constable answering a harmless finger gesture with a billy club sounds like a great way to end a promising law enforcement career to me. Sometimes a little body language letting said constable 'informally' know where you stand on the issue is the most constitutionally protected speech I can think of, lest they get completely out of line and start thinking they have some lawful mandate to interfere with anything and everything. They don't.

Posted by: B Brown | Mar 16, 2010 1:23:01 PM

Actually, Don Meaker, that is a much more recent tradition. Anyone rough and tumble enough to give someone the finger ought to be able take the knocks they've deliberately provoked without whining about it. And anyone stupid enough to give the police the finger, well....

Posted by: Hugh Mackie | Mar 16, 2010 2:07:32 PM

My 17 year old child gave me that finger and I slapped her three times. I am male and she is female. I was listening to a radio show recently and a woman was arrested for slapping her daughter for the same offense. She said that her child now is aware that it is not good to arrest your mom/dad for the offense of slapping your child. My life has been a living nightmare since then. I am concerned about the definition of domestic assault. I am now aware that pinching your child on the ear or giving the child a time out is abuse. Please GOOGLE the woman who was fired from the US Navy for giving a sailor a time out USS COWPENS / USS JOHN MCCAIN and you will see why this is out of control and something needs to be done to stop this

Posted by: Bill Dossey | Mar 16, 2010 2:55:53 PM

Hey, proof that Bush is a real man and Obama a girly wuss.

'W' shows that he meant to flip someone off. Obama has to hide behind cutesy mannerisms. One will bomb you and the other one bore you.

Posted by: Don Rodrigo | Mar 16, 2010 3:45:37 PM

LOL jgreene,
Funny, your attitude regarding the benefits of informal law enforcement, the "practical" constitution and the desirability of willful criminal assault by police in back alleys with billyclubs speaks volumes about one of the most blatant cesspools of corruption in the nation. We chased the toadies to the king clear out of the country at the time of the revolution. A pity your relations snuck back in somehow. I'd like to see those practical criminals hiding behind a badge that you so admire take their rightful place in prison. Then we could see a little practical, pragmatic street justice served.

Posted by: Amused Observer | Mar 16, 2010 4:44:27 PM

I agree that government should not tell you you cannot give someone the finger. I also maintain that government should not prosecute you when you give someone a much deserved asswhuppin' for flipping you off.

Men should be allowed to fight it out. It leads to a more polite, orderly society overall. Government should not censor people, but other people should censor each other through cultural norms.

Courts have ruled that the use of "nigger" incites to violence. In my book, so does giving the finger. Not always. It depends on the situation, as with the use of the word "nigger". There are times when you get called to account and pay with your ass.

If someone had stepped forward to defend Hillary by beating Obama's ass for flipping her off, or simply forced him to apologize or get his ass beaten, that man would've been a great hero to society. It would've drawn the line... and Obama would never have been elected, because he'd've been exposed.

Men don't give women the finger, because the women can't beat the man's ass. It's bullying. Men defend women. Women should never give a man the finger, because it exploits the situation of men being protectors. It eventually leads to removing men as their protectors and women getting bullied by such as Obama.

We have Obama as President, because society has denigrated to the point that we don't kick the ass of people who use the finger as a form of bullying. Start kicking bulliess' asses again, and we don't get the likes of Obama.

Posted by: Marc Malone | Mar 16, 2010 5:03:27 PM

To my Dad's generation (he's 76) it meant you were going to fight and when I was younger it meant the same thing. Today, not so much. My kids flip each other off all of the time and it's lost it's bite. The cops need to get over it.

Posted by: roux | Mar 16, 2010 6:02:35 PM

Have another drink, Amused Observer. You can't even identify the correct target for your name calling.

Posted by: Hugh Mackie | Mar 16, 2010 6:42:41 PM

What, no picture of Bill Clinton flipping the bird?

Posted by: rosignol | Mar 16, 2010 6:44:43 PM

"Anyone rough and tumble enough to give someone the finger ought to be able take the knocks they've deliberately provoked without whining about it. And anyone stupid enough to give the police the finger, well...." Hugh Mackie

Yes, and anyone stupid enough to contradict the government party line simply deserves to be thrown in jail and silenced. Because Might makes Right. So sit down, shut up, and take whatever your "betters" give you. You have no rights.

Good to know the American dream of totalitarian might crushing the populace by "right" of force is still alive.

What? You have your American Dream and I'll have mine.

Posted by: Ertdfg | Mar 17, 2010 12:40:29 PM