Act of Fingering Goes to Court

The old axiom (one often used by libertarians) is that your freedom to swing your fist ends at the tip of my nose. Apparently, one fifth of this axiom will be tested in federal court. From the AP:

A motorist believes the constitutional right to free speech includes obscene hand gestures.

Thomas Burns, of New Castle, contends he was denied his First Amendment free speech rights when he was cited for giving an obscene hand gesture to a construction worker in April, according to a federal lawsuit filed Monday in Pittsburgh.

Burns had become frustrated with a traffic delay and showed the gesture at a construction worker. The worker reported it to a police officer, who cited Burns for disorderly conduct, according to the lawsuit.

The citation was dropped, but Burns filed a lawsuit because he believes he was maliciously prosecuted.

The obvious question is what sort of construction worker tattle tales to the police for getting flipped off? Where I live, at least, contruction workers are more manly than in Pennsylvania — including most of the females.

According to the article, there were no other potential crimes associated with this case:

The “finger gesture was not accompanied by any verbal threats, taunting or communication and was never visible to anyone other than the workers,” the lawsuit states. “The gesture, albeit insulting, had no sexual meaning, did not appeal to anyone’s prurient interest, and did not create a public disturbance or breach of peace.”

While the Pennsylvania Constitution doesn’t mention fingers, the intent is made very clear:

The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

I’m not sure why this is going to federal court, but the First Amendment is equally clear. Perhaps the axiom needs to be rewritten: So long as your finger doesn’t end up inside of my nose, your right to flip the bird must be protected.

Thanks to Mike G. for the tip.

6 Comments
  1. Should be an interested case. The gesture may be rude, but it’s not obscene. Protection of free speech should include speech that is rude and insulting. Unfortunately there’s no constitutional protection for punching somebody in the mouth after they give you the finger.

  2. “Fingering” has another definition, so you might want to change your title…I thought manually pleasuring a female had been made illegal or something.

  3. Nigel – my kids would have laughed and said “Made ya look!!!”

    If this was a Republican site, I’d have never considered the title. As a libertarian site, I find it somewhat amusing.

    If they can outlaw giving one the finger, they can also outlaw finger-banging. I’ll even bet there are some municipalities where both are outlawed.

  4. Depending on the definition it’s already covered under the sodomy laws found in a number of states across the nation.

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