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First Amendment Protects the Finger

Sep 09, 2009 First Amendment Protects the Finger

A survey would likely find infinitely more arrests for finger flipping than finger pulling.

However, the First Amendment protects finger flipping, as confirmed earlier this year by the Western District of Pennsylvania:

By 2006, numerous federal courts, including a United States District Court in Pennsylvania, had ruled that the middle finger gesture was constitutionally protected speech. 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). In addition, the Pennsylvania Superior Court had determined that such gesture was not “obscene” within the meaning of the disorderly conduct statute. Commonwealth v. Kelly,758 A.2d 1284, 1288 (Pa. Super. 2000).

Hackbart v. Pittsburgh, Civ. No. 2:07-cv-00157-DSC (W.D. Pa., March 23, 2009).

For more on this Hackbart opinion, see the following: Case docket; Complaint; Order denying summary judgment to the defense; and Order on the defense’s in limine motion.

Now a jury will proceed to determine Pittsburgh’s extent of liability and damages owed for enabling frequent finger flipping arrests.

Thanks to a listserv member for posting this article on this case, which awaits trial. Jon Katz

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