While many people "flip off" or give others the bird in public, I often wondered if it was actually legal. Oddly, while I have been a criminal defense lawyer since 2004, I didn't actually know the answer to that question until recently. Just because many people do it doesn't mean that it is actually legal. I know of many Penn State students that drink underage, and they learn the hard way that just because many people do something doesn't stop criminal charges from being filed.
Pennsylvania Disorderly Conduct Charge
If giving the finger would be a violation of any state law, it would be Disorderly Conduct as set forth in section 5503 of the Crimes Code, a summary offense. Subsection (a)(3) of the Disorderly Conduct law provides that a "person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he...uses obscene language, or make an obscene gesture. The issue is relatively simple and straightforward, is giving a person the finger an obscene gesture that was given with the intent to cause public inconvenience, annoyance or alarm?
In the decision of Miller v. California, the United States Supreme Court gave some guidance in determining what language or gestures constitute "obscenity." The Court generally defined obscenity as appealing to an unwholesome sexual desire, depicting or describing sexual conduct in an offensive way, and lack literary, artistic, political or scientific value. In 1964, United States Supreme Court Justice Potter Stewart recognized the difficulty in truly defining obscenity, but he famously stated "but I know it when I see it."
Is Flipping the Bird Obscene?
Surprisingly, there is no Pennsylvania state court reported decision that expressly answers this question. Also, as with almost anything, the answer is that "it depends." While flipping the bird may not be obscene in one circumstance, it could be in others.
While there is no Pennsylvania state court decision on this issue, a Federal District Court in the Middle District of Pennsylvania did consider whether or not a Pennsylvania police officer could arrest someone for Disorderly Conduct after the person flipped off the officer. In the case of Brockway v. Shepherd, the court held that the arrest was unlawful because giving the bird in this case was not obscene and thereby was not a violation of Disorderly Conduct. The court noted that flipping off is somewhat of substitute for using the "f-word," which has sexually overtones, but the court stated that there was no sexual nature here.
The Federal court partially based its decision upon the Pennsylvania Superior Court decision of Commonwealth v. Bryner. In Bryner, the Superior Court held that shouting "go to hell, Betsy" in a public place was not obscene and thereby did not constitute Disorderly Conduct. The court acknowledged that the statement may have been provocative and even annoying, but it was still not obscene and thereby not illegal under the circumstances.
Generally speaking, I do not believe that flipping someone off would be considered a crime in Pennsylvania. In order for it to be considered Disorderly Conduct, it must be deemed to be obscene, which requires some sort of sexual connotations. In most situations, flipping people off is more a sign of disdain and disagreement and thereby not obscene. While flipping the bird may be legal, I wish that people would find another way to vent their frustations. I would be appalled if I saw my son, similar to the one in this photo, flippping the bird because he saw someone else engage in the activity. Just because a person may legally be permitted to something doesn't necessarily mean that a person should.