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March 25, 2009

Flipping "the Bird" is Constitutionally Protected Speech

So ruled U.S. District Judge David Circone on Monday (PDF), but this is apparently a fairly settled question.

Here, the plaintiff, David Hackbart, was parallel parking at a meter along a city street when another car approached from behind. That car's driver then pulled partially into the metered parking spot, thus preventing Hackbart from pulling into the spot. The other driver then refused to move, so Hackbart flipped him the middle finger.

This was witnessed by a passing police officer who then told Hackbart, "Don't flip him off." Well, Hackbart then flipped off the police officer too. So the police officer pulled him over and cited him for disorderly conduct. Hackbart fought it and now a federal judge says the police officer violated Hackbart's First Amendment speech right.

I can't say I every really thought about it before so I'm a little surprised by this result, but the judge did a great job analyzing the question. And he's not alone:


Moreover, several courts, including federal and state courts in Pennsylvania, have found that the expressive use of the middle finger is protected speech under the First Amendment. See, e.g., Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997)(Use of the words f--k you by driver while extending his middle finger to a group of protestors was clearly speech entitled to First Amendment protection); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)(Directing a series of expletives and an obscene hand gesture at police officer represented an expression of disapproval toward the officer, and therefore, falls within the protective umbrella of the First Amendment); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1102 (W.D. Ark. 2000)(giving someone the finger is protected speech); Brockway v. Shepherd, 942 F.Supp. 1012, 1015 (M.D. Pa. 1996)(gesture with middle finger toward a police officer is protected speech and not obscene under the Pennsylvania disorderly conduct statute); see also Commonwealth v. Kelly, 758 A.2d 1284, 1288 (Pa. Super. 2000)(same).

Sounds like somebody's headed for a nominal fee of $1 and loads of the other party's attorneys fees.

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posted by Gabriel Malor at 08:54 PM

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