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You Have the Right to Give Someone the Finger

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is the middle-finger gesture obscene? Not in Pennsylvania, according to a state appellate decision filed this week reversing a man’s conviction for giving his ex-wife the finger. Decided in the shadow of the First Amendment, the decision raises the ever-intriguing question of what counts as obscenity. It also calls into question the old idea that obscene speech is exempt from the constitutional rules governing freedom of speech.

The case, which I read about on the invaluable appellate law blog How Appealing, involves facts that would be funny if they weren’t tragic in the everyday sense of the term. Jason Waugaman was dropping off his children, 6 and 7, at the apartment building of his ex-wife, Kacie Boeshore. She came down to meet them in the parking lot; Waugaman was kissing the kids goodbye.

According to Boeshore’s testimony, as she walked away with the kids, Waugaman said something she couldn’t hear. She turned around, walked back and stood several feet in front of his car demanding to know what he’d said. Instead, Waugaman drove off, giving his ex the finger and (Boeshore testified) narrowly missing her.

Police in Hampton Township, Pennsylvania, near Pittsburgh, charged Waugaman with reckless endangerment for the driving and disorderly conduct for the gesture. A judge acquitted Waugaman of the first, more serious charge, but found him guilty of disorderly conduct under a state statute that makes it a crime to intentionally “cause public inconvenience, annoyance or alarm” by using “obscene language” or an “obscene gesture.”

There’s no doubt that Waugaman’s behavior fit the definition of disorderly conduct in the statute as it must have been intended by the Pennsylvania legislature. In fact, so impoverished is the gestural language the contemporary U.S. that the finger is almost the only one I can think of that would be broadly recognized as obscene.

But a three-judge panel of the Pennsylvania Superior Court overturned the conviction. It did so by focusing on the definition of the word “obscene.” Following state precedent that traces back to the landmark 1973 U.S. Supreme Court case Miller v. California, the court defined obscene as appealing to “the prurient interest” or else depicting or describing specific sexual conduct in a patently offensive way.

What both of these definitions have in common is that they restrict obscenity to sex. The archaic word “prurient” is defined by the Supreme Court following Webster’s New International Dictionary to include “itching; longing; uneasy with desire or longing.”

Under the court’s definition of obscenity, mere crudeness doesn’t qualify. For something to be obscene, it must be sexual -- and be calculated to inspire others to lustful thoughts. That plainly doesn’t include an extended middle finger. As the Pennsylvania court put it, “it would be a rare person who would be ‘turned on’ by the display of a middle finger or the language it represents.”

Although the court described this as a case of ordinary statutory interpretation, the First Amendment is in the background. Ordinarily, any law punishing speech or symbolic conduct like a hand gesture on the basis of its conduct would be unconstitutional unless it served a compelling state interest and was narrowly tailored to achieving that interest.

But obscenity is different. It’s one of a very small category of exceptions to the First Amendment -- speech considered to be of such low value that it is unprotected. When the Supreme Court first defined the category in 1942, it said that it included “the lewd and obscene; the profane, libelous, and the insulting or ‘fighting’ words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Since then, the category has been tweaked. Profanity -- which would surely have included the middle finger salute -- dropped out. Libel has remained an exception, but the Supreme Court has laid out rules for public figures that take free speech values into account. The “fighting words” exception is on the books, but is almost never invoked by the courts. The court has also effectively added another exemption, one for child pornography.

But obscenity remains on the list, which is why the Pennsylvania court could even consider the possibility that giving the finger might be punishable as a crime. And yet, one of the judges wrote a separate concurring opinion consisting of a single sentence: “Unless the First Amendment was repealed when I was not looking, giving someone the finger should not constitute a crime.”

To me, that seems legally correct -- and it effectively overrules the part of the Pennsylvania statute that outlaws obscene gestures. Why, in the age of the internet, should obscenity, defined as appealing to the prurient interest, be exempt from First Amendment protection at all? Earlier generations associated prurience with sin, because they thought of almost all expressions of sexuality in the same terms. Today, we may be interested in protecting the very young from explicit references to sex, but there is almost no context in which we do so successfully through the mechanism of law. Maybe in the absence of obscenity laws, explicit sexual acts would be depicted on public billboards. But I tend to doubt it -- just as I doubt whether such depictions would really be the end of the world for children.

Sometimes archaism like the word “prurient” is charming. More often, archaism in law is a sign of obsolescence. Free speech has its costs, including the coarsening of public discourse. Preserving the special constitutional status of obscenity, however, doesn’t do much good -- and it subverts free speech values.

  1. For a handy-dandy guide to obscene gestures around the world, see here.

  2. Conceivably, the middle finger gesture was once understood to depict specific sexual conduct, but it’s now understood as a more general expression of contempt.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at nfeldman7@bloomberg.net

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Stacey Shick at sshick@bloomberg.net