“Flipping the Bird” Can Get You into Trouble


Two recent cases put the spotlight on giving a person “the bird”, or “flipping them off”, and whether such a gesture is protected by the First Amendment to the U.S. Constitution.  In one case, a police officer was the target, but, in the other, the person had the audacity to flip off a criminal court judge.  The woman that flipped off the judge had disagreed with his decision and chose to express her displeasure by extending her middle finger. In the other case, a man flipped off a police officer for some unknown reason. The Florida judge that saw the bird held the girl in contempt and sentenced her to spend 30 days in jail. However, the following day, the girl apologized, and the judge was willing to rescind the 30-day sentence. With regard to the man that flipped off the police, a Federal Circuit Court of Appeals held that the man had not violated any law; therefore the police had no reason to conduct a traffic stop or detain the man.

In the case involving flipping off a police officer, the man was suing the police and claiming that the police had violated his constitutional rights by stopping him for exercising his First Amendment right to free speech. One of the police officer’s excuses for stopping the man was that he claimed that he believed the man gave him the bird to get his attention because the man needed help. And people accuse criminal defense lawyers of using creative arguments. The court was not so convinced and stated that flipping the middle finger is a universally recognized sign, and the sign is clearly not a request for help.

Before discussing the legality of flipping the bird, I admit that I have not given anyone the finger in years as doing so would immediately put me in my wife’s doghouse. My wife also has reiterated the idea that I am a role model for my children, and I would be appalled if I saw any of my children giving someone the finger. While I personally believe that there are many ways in which to show displeasure without extending one’s middle finger, my personal decisions do not stop others from doing what they want to do.

Constitutional Rights Have Limitations

People that do flip off others probably believe that the First Amendment, the amendment that generally protects the right to free speech and expression, would protect them from prosecution. I expect that most people understand that there are limitations to constitutional rights. For example, the Second Amendment generally protects the rights of people to carry firearms for self-defense, but many states, including Pennsylvania, prohibit a person from carrying the firearm concealed without a permit or license specifically authorizing it. Most people also believe that if they are charged with a criminal offense that they have a constitutional right to have a trial before a jury of their peers. In actuality, a person is only entitled to a jury trial if the maximum sentence is more than six months. In Pennsylvania, first offenses of driving under the influence (DUI) are ungraded misdemeanors, which carry a maximum sentence of six months, so a person is generally not entitled to have a jury trial on a first-offense DUI.

Limitations to the First Amendment

The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Over the years, the United States Supreme Court has been called upon to issue decisions that permit limitations to be placed on the First Amendment. The Court’s decisions are often somewhat fact-specific, meaning that some speech may be permitted in some areas but not in others. A classic example is that a person is not permitted to yell “fire” in a crowded theatre as doing so is likely to create immediate panic, and people clamoring for the exits could lead to injury and possibly death. Also, speech that may be permitted on a college campus may be prohibited in an elementary school.

Generally speaking, the Supreme Court has stated that “fighting words,” speech that incites others to imminent lawless actions, obscenity, certain types of defamatory speech, and true threats do not fall under the protections of the First Amendment and thereby can be regulated and even punished by the legal system. In Pennsylvania, laws such as a summary offense of Disorderly Conduct and Terroristic Threats are examples of regulations of speech that have been held to be constitutional by Pennsylvania courts.