Do you have a First Amendment right to flip the middle finger at the police? Is it illegal to do so? The First Amendment prohibits the government from abridging freedom of speech with a limited carveout for certain categories like obscenity, incitement, fighting words, and true threats. As Professor Rachel Harmon explains, the Supreme Court has long recognized that protected speech may include symbolic and expressive conduct — like flipping the bird — when the speaker intends to convey a message or idea. Even when the target of the expressive conduct is a police officer, this protection still stands. The Supreme Court has noted that police officers, when faced with verbal challenges to police action, are expected to exercise a higher degree of restraint than the average citizen. And lower courts have found time and again that the middle finger gesture directed at an officer, without more, is not a legitimate reason for arrest.
Rachel Harmon is a professor at the University of Virginia School of Law and the faculty director of its Center for Criminal Justice.
Profanity and Free Speech
Under the First Amendment profanity or curse words cannot be blanketly restricted. As the Supreme Court reasoned in the case Cohen v. California (1971), while certain words may be distasteful to some, they may resonate with others, and it is not the role of the government to make such determinations. Justice Harlan opined, according to such logic, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”
The Spence Test and Expressive Conduct
Professor Harmon also explains that protected free speech is not limited to spoken words, expressive conduct is also protected. The Supreme Court states this principle in the landmark case of Spence v. Washington (1974). In that case, an arrest for displaying a United States flag upside down and with a peace symbol attached to it was seen as expressive of opposition to the Vietnam War. As the opinion reasoned, conduct is protected under the First Amendment where “an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Thus the Spence Test was born to identify protected expressive conduct.
The Spence Test and the Middle Finger?
To apply the Spence Test to a use of the middle finger, we must ask two questions: (1) is there an intent to communicate a message, and (2) is that message likely to be understood. Given that this particular gesture can mean different things at different times, this may seem to present a problem. For example, one use of the finger can convey contempt while in other, it may signal a humorous and friendly emphasis to provoke a laugh. In each of those cases, intent to convey a message is present, and the only remaining question is whether that message is likely to be understood. With context, a display of the middle finger to a police officer would pass the Spence Test as both intent and understanding by the viewer are present.
A Recent Case
Just because it may be constitutional doesn’t mean that you cannot be arrested. In fact, instances of arrest for showing the middle finger to police arise, but are not legal. A recent case was reviewed by the Sixth Circuit Court of Appeals in 2019. In Debra Lee Cruise-Gulyas v Matthew Wayne Minard, Circuit Judge Sutton writes in the opinion, “Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.” In that case, Cruise-Gulyas sued for violation of her constitutional rights, and the Circuit Court took her side against the police officer involved.
So one question I get a lot is whether you can be arrested for giving the finger to a police officer. My name is Rachel Harmon, I'm a Professor and Director of the Center for Criminal Justice at the University of Virginia Law School. And the answer is no, you have a First Amendment right to verbally oppose a police officer to criticize him, and that includes conduct that's expressive like giving the officer a finger. It doesn't mean that no officer ever arrests somebody for doing so, but it's illegal. We can impose reasonable time, place or manner restrictions on First Amendment activity, but that doesn't include arresting you for just cursing at the police. I'm Rachel Harmon, thanks for watching TalksOnLaw.