Tags: Freedom | News | our rights

In Western cultures, the finger (as in giving someone the finger) is an obscene hand gesture made by extending the middle finger of the hand while bending the other fingers into the palm.

Flying The Bird

There's this guy, Hackbart, 34, who was looking for a parking spot in April 10, 2006. As he attempted to back into a space, the driver of a car behind him refused to back up to give him sufficient room. Hackbart responded in the classic way. "I stuck my hand out the window and gave him the finger. "All I was trying to say — 'thanks, thanks a lot.'"

He hears someone screaming not to make the rude gesture in public. "So I was like how dare that person, they obviously didn't see what happened. Who are they to tell me what I can say?" "So I flipped that person off. And then I looked and it was a city of Pittsburgh cop in his car right next to me."

It was a cop, Police Sgt. Brian Elledge, who happened to be passing in the other direction. Elledge turned around and pulled Hackbart over, citing him under the state's Disorderly Conduct law, which bans "obscene" language and gestures. And here's where the problem lies, says state ACLU Legal Director Witold "Vic" Walczak: the middle finger, and equivalent swear words, are not legally obscene. In fact, courts have consistently ruled that foul language is a constitutionally protected form of expression.

"The law is clear that people have the constitutional right to use profanity, especially when it comes to government officials, because that is a form of political speech," Walczak says. "But despite that, we have police officers regularly misapply the law to punish people who offend them — that's really what it comes down to."

United States District Judge David Cercone ruled in March that the citation, along with the $119.75 court costs imposed by a city court, was clearly unconstitutional. The question, however, is whether the city has a pattern of constitutional violation. The ACLU says it found 188 cases between 2005 and 2007 where people were cited under similar circumstances, despite an entry in the Police Department's training manual making clear that vulgar speech is not illegal.

*/*&%$#@ You!!

In law enforcement, there are few situations that are clear-cut, and disorderly conduct is one of the fuzziest. As Harvard professor Henry Louis Gates Jr. now knows all too well, the misdemeanor charge can be used to corral people who are simply uncooperative or rude. State statutes are designed to help police officers maintain authority, and they are so broadly worded that divining what constitutes disorderly conduct is left up to the discretion of individual officers. "It's probably the most abused statute in America," says Eugene O'Donnell, a professor of law and police studies at John Jay College of Criminal Justice in New York City.

"In contempt of court, you get loud and abusive in a courtroom, and it's against the law," says Shane, now a professor of criminal justice at John Jay who specializes in police policy and practice. "With contempt of cop, you get loud and nasty and show scorn for a law-enforcement officer, but a police officer can't go out and lock you up for disorderly conduct because you were disrespectful toward them." The First Amendment allows you to say pretty much anything to the police. "You could tell them to go fuck themselves," says Shane, "and that's fine."

Flipping the bird, or sticking out the middle finger, is perhaps the oldest insulting gesture on earth. The move dates back to ancient Greece and was adopted by the Romans as digitus impudicus — the impudent finger.

A zillion middle fingers later, an Oregon man is suing suburban Portland cops (.pdf) over his use of the gesture, claiming civil rights violations. Twice he flipped them off for no apparent reason while driving and was pulled over each time — resulting in what he said was a “bogus” traffic citation that was later dismissed, and a tongue lashing he still remembers.

“The guy flew into a road rage,” Robert Ekas, a retired Silicon Valley systems analyst, said in a telephone interview Tuesday.

Lawrence Wolf, a Los Angeles criminal defense attorney, said there was no law against flipping off cops. And in most instances when it leads to an arrest or conviction, the charges are dismissed. But the gesture invites police confrontation, he said.

“It’s certainly not the smartest thing one can do,” Wolf said.

American University legal scholar Ira Robbins has written a definitive paper on flipping the bird: “Digitus Impudicus: The Middle Finger and the Law.” (.pdf)

“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,” Robbins wrote.

In November, a Pittsburgh man was awarded $50,000 after he was wrongly cited for disorderly conduct after flipping off an officer.

Ekas, in both instances, flipped off officers while they were driving a Clackamas County patrol car. “It seemed like the right thing to do,” said the 46-year-old, who is seeking damages and police reform amid allegations he was unlawfully stopped. “The long and the short of it, I was pulled over because I gave them the finger.”

A federal judge will entertain Clackamas County’s motion on March 15 to have the civil rights lawsuit tossed. The county denies the allegations. (.pdf)

Ekas said his actions, which occurred with his teen-aged son in the car both times, were a form of protest against the agency he claims is abusing its citizenry. “That’s why they get the finger,” he said, noting he wants a jury trial.

Wolf, meanwhile, suggested if Ekas’ case makes it to trial, the officers are likely to testify that they were concerned “about his sanity.”

The jury, he said, is likely to say, “‘Give me a break’ and then go home.”

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