Why you have the right to remain silent and flip the bird

Vincent Ta/HIGHLANDER
Vincent Ta/HIGHLANDER

A recent federal appeals court decision has ruled that flipping off a police officer is a legitimate form of expression and not grounds for pulling a driver over. This decision came about after a driver in New York was pulled over when he flipped off an officer who had a radar gun and was then charged with disorderly conduct. The officer argued in court that he believed the gesture was disorderly conduct, but the court rejected this argument.

Because the appeals court ruled that the act of giving a police officer the finger is a valid form of what could be called “symbolic speech,” this amounts to the court protecting the act under the First Amendment. This seems quite paradoxical, given that the action is definitely an insult — the equivalent of verbal profanity. Profanity, however, is not always protected speech according to the First Amendment. Specifically, profanity is considered illegal when it incites violence or any other breach of the peace (similar to the “clear and present danger” test, in which speech is not protected if it causes a clear and present danger to public safety). Because flipping off a police officer, or anyone for that matter, is inherently a belligerent act, the appellate court’s decision seems to go against established rulings on free speech.

Nevertheless, the court has made its decision, and if flipping the middle finger to a police officer is considered lawful under our First Amendment, then by all means it should be protected. However, this raises a new issue, namely: Under what circumstances should the action be used? To allow anyone who dislikes police officers to spontaneously flip them off whenever they pass by is a tremendous disrespect to those whose job it is to maintain public welfare. As such, this court ruling necessitates a method of punishment for those who gratuitously use this new extension to our First Amendment freedoms. Of course, such an abuse, because it is technically protected speech, cannot bear any punishment for such an offender.

The question also arises of under what conditions profanity, whether physical or spoken, is permissible. On one hand, rulings on the First Amendment by federal courts have determined that profanity is allowed as a form of expression, except when, as mentioned before, it results in endangering someone. Otherwise, the Constitution permits profanity in private and most public situations. On the other hand, there are social laws that dictate the acceptability of profanity beyond what the First Amendment does. For example, most people will censor themselves in front of children because they know it is often regarded as inappropriate to cuss in front of them. No law prohibits this act, which means that the self-censoring is a social construct.

To answer the previous question, one must consider when people tend to use profanity. People start dropping f-bombs (and assorted verbal weapons of a lesser degree of potency) when they are either angry about someone or something, or when there is something frustrating them. In these cases, profanity is merely an indicator of that feeling, and as long as one is experiencing that feeling, the associated verbal expressions are not only appropriate, but expected. In other words, we can pardon someone’s French if they abruptly stub their toe, spill their coffee or notice a policeman with his radar gun at a speed trap. Indeed, as long as those feelings and that reaction are associated, an attempt to restrict the latter is tantamount to restricting the former. If one expresses one’s sudden frustration with a bit of profanity, taking that manner of expression away eliminates their capacity to express the emotion.

The ability to express oneself freely is perhaps the most important guarantee made by the Constitution, and flipping someone off is one of the key ways many people express a sentiment of anger. Therefore, it is permissible, and should be, to utilize this gesture with police if something a police officer does prompts those negative feelings — particularly if they are, say, setting a speed trap.

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