It’s Free Speech. And while you can’t shout fire in a crowded theater, it’s apparently still alright to give the middle finger to a cop or to flip off San Diego Charger fans or to give your neighbors ‘the bird’ with your Christmas lights.
But like almost every rule, there are exceptions. For instance, don’t flip off a judge or you might get a month in jail.
A one-fingered salute for law enforcement.
So there was a lot being made about John Swartz, the guy who last week overcame a trial court’s summary judgment order when the U.S. Court of Appeals for the Second Circuit ruled among other findings, that the district court had erred when it dismissed the malicious prosecution claim, which was part of the lawsuit Swartz and his wife brought against two police officers — for their “seizure” when ordered to return to their automobile and their subsequent disorderly conduct arrest. The Swartzes claimed it was all because John Swartz gave the finger to a police officer.
The court also held there was a question of whether a motor vehicle stop occurred and whether there was probable cause for the arrest for disorderly conduct. In layperson’s terms, John Swartz’s Middle Finger Flashed in ’06 Lives On. See Swartz, et al v. Insogna, et al :: Second Circuit :: US Courts of … – Justia.
Not a big deal.
For some reason, the news media has given the Swartz case a lot of play. In truth, it’s not a big deal. There’s a long legal history concerning “Digitus Impudicus: The Middle Finger and the Law.”
Along similar lines, also see the First Amendment review helpfully cataloged by Chip Rowe in 2004 entitled, “The Legal History of Flipping the Bird / Middle Finger.”
Fingering cops over officer-involved shootings.
In 2007 there was Oregonian Robert Ekas, the Clackamas man who claimed his individual free speech right to give local cops the finger,
Ekas said he did it to protest police “killing unarmed people.” So he opened his car’s sunroof and gave deputies the one-finger wave as he drove past. “What I am expressing is the right to dissent. That is to say, ‘Look, the policies that you’ve implemented … the things you’ve done in our community are offensive to me. Here’s my response to that offense.'”
But other than anecdotally, it’s difficult to ascertain if Ekas is right about officer-involved shootings involving “unarmed people,” especially since national data on shootings by police is not collected.
And while Ekas’s method of protest caused him no small measure of grief, he nevertheless explained, “I did it because I have the right to do it. We all have that right, and we all need to test it. Otherwise we’ll lose it.”
Parenthetically, as for police violence, he’s right to raise the concern. I don’t know about Clackamas County, Oregon but in December 2011, the Las Vegas Review-Journal ran a comprehensive investigative report on Las Vegas police use of deadly force. It was sobering reading on an issue largely under-reported — not the least being because it’s impolitic anymore to criticize police first-responders and because of who the victims are. Consequently, it’s easier to paint any disquietude as nothing more than the overwrought hand-wringing of the usual bleeding-hearts.
As for the “impudent finger,” as our society evolves and not necessarily for the better, it remains useful to note that the one-fingered wave has a long inglorious history. Some trace it back to the Cynic philosopher Diogenes of Sinope who when he wasn’t carrying a lamp around in search of an honest man, was supposedly flipping off everyone else.
And in the United States, some believe the first recorded (or at least the first photographic) evidence of the ‘finger’ was the offending digit of baseballer Charles Radbourn who in the back row, far left in the photo above, gave the cameraman his left-handed one-finger salute. And more famously in the annals of a more inexalted recent past, there was the memorable “one-finger victory salute” from George W. Bush. Ah, Free Speech, don’t you love it?
Photo Credits: “The Gesture,” by jinterwas at Flickr via Creative Commons-license requiring attribution; “middle_finger,” by Martin Criminale” at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution;”One left in the chamber,” by crazyad0boy at Flickr via Creative Commons-license requiring attribution; “Diogenes looking for a man,” by Johann Heinrich Wilhelm Tischbein at Wikipedia Commons, public domain, sourced by Nagel Auktionen;”Group picture, Boston Beaneaters and New York Giants, Major League Baseball Opening Day 1886. Charles Radbourn giving the finger to cameraman (back row, far left).” Old_Hoss_Radbourn_finger.jpg by author unknown at Wikipedia Commons, public domain;