I am going to be honest; the one finger salute is by far one of my favorite symbols for expressing various emotions.  And as a Cleveland Browns fan, I utilize the one finger salute as a sign of frustration every Sunday afternoon during the football season.  But that comes with the territory of being a Browns fan.

The use of the middle finger in human culture is nothing new.  The gesture has been around since the time of Aristotle and was used throughout the ancient Greek and Roman times, the Middle Ages, and eventually modern society.  Society’s continued use of the middle finger, however, seems to have made a once very obscene gesture into an everyday common occurrence.  We see movie stars, professional athletes, and even politicians use the middle finger as a sign of jest versus a sign of obscenity.   In a video from 2005, former president George W. Bush is shown flicking off the camera after he jokingly told his aide to leave him alone.  You can hear the aides and President Bush laughing about giving the camera guy the middle finger.  President Bush states that it is his “one finger victory salute.”

Now that we are in the age of social media, we are inundated with pictures and videos of individuals throwing up the middle finger as a sign of jest and comedy.  Whether it is through Facebook, Instagram, or any other social media outlet, society sees the middle finger gesture on a daily basis.  Some pictures and videos can be construed as being obscene, but for the most part they are funny.

Setting the comic relief aside, using the middle finger in public towards private individuals or even government authority can, more often than not, lead to a citation or arrest for Disorderly Conduct.  Before going any further, I believe it would be helpful to take a quick look at the Disorderly Conduct Statute.

Disorderly Conduct, under R.C. 2917.11 states:

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;

(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;

(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;

(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.

As you can tell by reading this statute, it is very easy to see how the use of the middle finger or similar obscene language could be construed into the Disorderly Conduct statute.  Now you may be thinking to yourself how can the government criminalize this type of language and not violate my right to free speech under the First Amendment?  Is it not my right to express myself as I see fit if I want to protest the government or the police?  Those issues were put to test with the Ohio Supreme Court and the United States Supreme Court.  Specifically, when does free speech become unprotected fighting words in the context of police interaction?

In the hallmark case of Cincinnati v. Karlan, the Ohio Supreme Court was asked to determine if Section 901-d4 of the Cincinnati Code of Ordinances only punished spoken words. (The ordinance at issue is very similar to R.C. 2917.11, stated above).  In Karlan, Defendant Karlan was asked by a uniformed police officer if he had permission to tamper with an automobile parked in a police impoundment area.  Karlan shouted back at the police officer, “I hate all you f*cking cops, get out of my way you f*cking prick-ass cops.”  Soon after this dialogue, Karlan was arrested under Section 901-d4 of the Cincinnati Code of Ordinances.

At the time of Karlan’s arrest, there was much debate over the definition of protected speech.  The United States Supreme Court laid this to rest with a majority of opinions finding that “no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words defined by that tribunal.”

Based on this rationing, the Ohio Supreme Court found that “persons may not be punished under Section 901-d4 of the Cincinnati Code of Ordinances, for speaking boisterous, rude, or insulting words, even with the intent to annoy another, unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace.”  Unfortunately for Karlan, his words towards the police officer were construed to be fighting words, which are unprotected speech.

Even after the Karlan case, there have been additional cases that address the same issue raised in Karlan, but not too many deal with the use of the middle finger.  In looking for a case specifically dealing with the use of the middle finger towards police officers, I came across a case out of the U.S. Court of Appeals for the Second Circuit where the court spoke in detail about the use of the middle finger towards a police officer and how it relates to Disorderly Conduct.  Now, this case has been circulating on various website pages and social media pages where the commentators not only talk about the case but on some levels encourage people to extend the middle finger to police officers because there is no fear of being charged with Disorderly Conduct!  Hey, if it is on the internet it must be true, right?!?  The case in question is Swartz v. Insogna.

In Swartz v. Insogna, John Swartz was driving with his wife on their way back from a game; John was in the passenger seat.  While John’s wife was driving, he noticed a police cruiser using a speed detecting radar device at an intersection.  Not liking what the police officer was doing, John extended his right arm outside the passenger side window and extended his middle finger over the car’s roof.  John and his wife made it back home, got out of their vehicle, and then noticed police car coming up the street and eventually stopping at their house.  John and Officer Insogna went back and forth over whether or not Officer Insogna had the right to stop them, which eventually led to the arrest of John for Disorderly Conduct.  This charge was ultimately dismissed on speedy trial grounds.  John and his wife soon after file suit against the police department and Officer Insogna.

In his deposition, Officer Insogna stated that after John gave him the middle finger, he decided to follow the car “to initiate a stop on it.”  The reasons for the stop are (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car.  I just wanted to assure the safety of the passengers,” (3) “I was concerned for the female driver, if there was a domestic dispute.”  Officer Insogna further stated in his deposition that he did not observe any indication of a motor vehicle violation.

Needless to say, the U.S. Court of Appeals in the Second Circuit did not buy what Officer Insogna was stating in his depositions.  The Court stated:

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.  Surely, no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.  And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”

Based on this, the Court found the stop unlawful which would negate the Disorderly Conduct arrest.  Although the Court did a great analysis of the use of the middle finger towards a police officer, this analysis mainly went to reasonable suspicion to stop a vehicle, not to the Disorderly Conduct charge.  The Disorderly Conduct charge as it related to the use of John’s middle finger, the Court simply stated “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.”

Looking at the Karlan case, I do not believe giving the middle finger towards a police officer in certain situtations will rise to the level of unprotected fighting words.  And the very popular Insogna case circulating the internet lends very useful arguments to combat a Disorderly Conduct charge based on the use of the middle finger.  But, what I believe and what these internet commentators are preaching will not stop a police officer from placing you under arrest for Disorderly Conduct if you give him the middle finger.  Bottom line is that when facing a charge of Disorderly Conduct for giving a police officer the middle finger, you will have to fight the charge and most likely fight that charge at the appellate level to be acquitted.

So, if you want to avoid an arrest and costly legal bills, I would caution you from extending your middle finger towards a police officer.  However, if you just cannot resist that urge to show your frustration, make sure your attorney is on speed dial because you are going to need one!