First Amendment

Law Prof Says Long Arm of the Law Should Not Extend to Middle Finger

The middle finger may be losing its shock value, but that hasn’t stopped police from issuing citations to those who use the gesture to show their opinion.

An American University law professor who has written a law review article (PDF) on the subject maintains that such prosecutions are usually a violation of the First Amendment, as well as a waste of resources, the New York Times reports.

Law professor Ira Robbins says those who flip their finger should be punished when the state has a legitimate interest in preserving decorum—in schools or courtrooms, for example.

But in general, “The long arm of the law should not extend to the middle finger,” Robbins told the Times. “That’s not to say it’s smart to give the finger to a police officer.”

Most of those accused of raising their middle finger are charged with disorderly conduct. On appeal, most convictions are overturned, Robbins says.

In one case, motorist Robert Ekas of Clackamas, Ore., received a traffic citation when he raised his middle finger at a sheriff’s cruiser in 2007. When police began to chase him, he raised his finger again, this time through the sunroof.

He appealed on free speech grounds and won dismissal of the citations. Ekas told the Times his gesture was a protest against police brutality, rather than a response to a ticket.

“There’s rage and then there’s outrage,” he said. “There’s a difference.”

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