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The One Finger Salute and freedom of expression

On Behalf of | May 8, 2019 | Firm News

​Presidents do it.  Mister Rogers did it.  Professional athletes do it.  Monkeys do it.  So do police.What symbolic speech did all these people do?  Look at the pictures.

Despite the example set by all these people, when an everyday citizen makes the gesture to the police to protest government treatment, they risk arrest.  Coggin v. Texas, 123 S.W.3d 82, 90 n.3 (Tex. App. 2003)  It is the one finger salute, the finger rhythm, giving someone the finger or the bird or flipping someone off and some suggest it is am obscene hand gesture allowing someone to be arrested.  If you believe in the First Amendment, that arresting someone because they have flipped off a cop is wrong.

This despite the U.S. Supreme Court striking down an ordinance which made it illegal to interrupt an officer with speech.  City of Houston Texas v. Hill 107 SCT 2502(1987).  Subsequently, in Duran v. City of Douglas, 904 F.2d 1372 (9th Cir.1990) it was held that that a police officer did not have probable cause to stop an individual for the obscene gestures and words he directed from his car towards the police officer and that the officer was not entitled to qualified immunity. “While the citizens behavior was “boorish, crass and initially at least, unjustified…it was not illegal…. But disgraceful as [the defendant’s] behavior may have been, it was not illegal; criticism of the police is not a crime.” Id. at 1377-78, citing Houston v. Hill, 482 U.S. 451, 461–63, 107 S.Ct. 2502, 2509–10, 96 L.Ed.2d 398 (1987).  Other courts have reached the same results.  Pennsylvania v. Kelly, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1110 (W.D. Ark. 2000).

This is because in addition to simple verbal expression, the First Amendment protects actions symbolic of speech.  See, e.g., Cohen v. California, 403 U.S.15 (1971) (wearing jacket with the words “Fuck the Draft” on it); Tinker v. Des Moines School District, 393 U.S. 503 (1969) (wearing black arm band to protest Vietnam War); Brown v. Louisiana, 383 U.S. 131, 142 (1966) (Fortas,J); West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Stromberg v. California, 283 U.S.359, 369 (1931).  The prosecution of symbolic speech is prohibited because it penalizes an individual for the expression of an idea through activity.  Spence v. Washington, 418 U.S. 405, 411 (1977)

An important function of symbolic speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).  Moreover, symbolic speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Symbolic speech should be provocative and challenging.  Terminiello, 337 U.S. at 4.  Such freedom will not cause the disintegration of society but will strengthen it.  Barnette, 319 U.S. at 641-42.  “ The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”  City of Houston, Texas v. Hill, 482 U.S. 451, 462-63 (1987).

The police believe flipping off a person is constitutionally protected as well.  Professor Ira P. Robbins explains the following story told to him by a former police chief:

Several years ago, I was Chief of Police in Tulsa, Oklahoma. One of my fearless troops was driving down the street when a young man extended his middle finger in an obscene gesture, prohibited by the ordinances of the City of Tulsa. The young man was immediately arrested and charged in Tulsa’s Municipal Court with violating the ordinance. At a motion hearing the officer testified; the judge ruled that extending the middle finger was an act protected by the First Amendment’s freedom of expression … and declared the ordinance as applied to extending the middle finger unconstitutional. As the young officer was leaving the court room he stopped, turned back and extended his middle finger while saying, “Thank you very much, Judge.”

​Therefore flipping the bird to a cop may be an insult, but nevertheless you are at least constitutionally protected.  However, that may not be enough on the street.