The middle finger never needs to be extended towards anyone. We have enough other fingers to gesture and point. Giving the finger is divisive in a world where we are all connected, and where the negative energy of giving the finger comes back to us like a boomerang.

Yet, if we do not protect people’s right to engage in despicable expression, our own rights to engage in what we consider to be legitimate expression is threatened. Therefore, I am a free expression zealot, supporting free expression protection far beyond what the courts have yet been willing to do.

Car passenger Jon Swartz expressed his displeasure with a police officer operating a speed radar by giving him the finger through an open window, says Swartz’s civil rights lawsuit against the officer. Based on that finger alone, the officer temporarily detained Swartz on suspicion of disorderly conduct, investigated, claimed that Swartz committed further actions to justify arresting him, and arrested him, followed by a prosecution that lasted a few years until being dismissed on speedy trial grounds. Swartz claims that he did nothing relevant other than that one finger display. Swartz, et al., v. Insogna, et al., ___ F.3d ___ (2d Cir., Jan. 3, 2013). (Thanks to a colleague for posting on Swartz).  

On Swartz’s appeal of the dismissal of his civil rights suit over his resulting arrest, the Second Circuit — praised be the panel ruling in Swartz’s favor — that although New York’s disorderly conduct statute covers many activities, it does not cover the simple finger display alleged in Swartz’s complaint. The Second Circuit does not mention any First Amendment right to give the finger, and does not preclude police detentions where the finger is coupled with such actions as yelling one’s head off at a cop (although yelling one’s head off in public, by itself, often can be ruled sufficient to arrest in the jurisdictions where I practice, at least if such yelling is not in response to perceived police mistreatment of the suspect, and if civilians are around to be disturbed by the yelling).

The finger does merit sufficient First Amendment protection, and various other courts have said so, as I blogged over two years ago.

Extending a congratulatory handshake — or should I make that a middle finger shake? — to Jon Swartz and his co-plaintiff Judy Mayton-Swartz for winning this round in their litigation.