Key Takeaways
- Giving a police officer the finger is expressive conduct protected by the First Amendment, so it is not by itself a lawful reason to arrest you.
- The government can set reasonable time, place, and manner rules for speech, but those rules do not allow arrests just for cursing at or criticizing police.
- Under Nieves v. Bartlett and Gonzalez v. Trevino, suing over a retaliatory arrest is harder when the officer had probable cause for some other offense.
Can a police officer arrest you for flipping the bird? It is one of the most common questions people ask about speech and policing, and the answer says a lot about how the First Amendment treats rude, angry, or disrespectful expression aimed at the government.
In this TalksOnLaw Brief, Rachel Harmon, Harrison Robertson Professor of Law and Director of the Center for Criminal Justice at the University of Virginia School of Law, explains why the answer is no. A former federal prosecutor and a leading scholar of the law of policing, Professor Harmon gives a short, direct answer: you have a First Amendment right to verbally oppose and criticize a police officer, and that right covers expressive conduct like giving an officer the finger.
Expressive Conduct Is Protected Speech
Professor Harmon explains that the First Amendment protects more than spoken or written words. Gestures that communicate a message, including an obscene one, are a form of expression. The Supreme Court made a related point in Cohen v. California, which protected a jacket bearing a profane anti-draft slogan, and in City of Houston v. Hill, where the Court said that the freedom of individuals to verbally oppose or challenge police action without risking arrest is one of the principal characteristics of a free nation. Lower federal courts have repeatedly applied these principles to the middle finger directed at officers, treating the gesture, without more, as protected expression rather than a basis for a stop or an arrest.
Rules That Do Apply
Professor Harmon notes that the government may impose reasonable time, place, and manner restrictions on First Amendment activity. Those rules regulate how and where people speak, such as noise limits or keeping roadways clear, without targeting the message. They do not permit arresting someone simply for cursing at or gesturing toward the police. The narrow category of unprotected “fighting words” recognized in Chaplinsky v. New Hampshire has been read very narrowly by later courts, especially when the target is a trained officer who is expected to exercise more restraint than an ordinary citizen.
She also makes a practical point: the fact that an arrest is illegal does not mean it never happens. Some officers do arrest people for offensive gestures, often under broad disorderly conduct or obstruction laws, and the person then has to challenge the arrest after the fact.
What to Know Now
The core rule Professor Harmon describes remains good law: a rude gesture or harsh words, standing alone, are not a lawful basis for arrest. What has developed is the law on suing over a retaliatory arrest. In Nieves v. Bartlett, the Supreme Court held that a person arrested in retaliation for speech generally must show the officer lacked probable cause, with an exception when there is objective evidence that similarly situated people who were not speaking were not arrested. In Gonzalez v. Trevino, the Court clarified that this evidence does not have to be a precise list of comparable cases, which makes the exception somewhat easier to use. The practical upshot is that the gesture itself is protected, but if an officer can point to some other offense, such as a traffic violation or blocking a sidewalk, a later lawsuit becomes much harder. Protected speech is not a shield for separate unlawful conduct, and staying calm during the encounter remains the safest course.
