Can You Flip Off a Cop? Lehto's Law Ep. 5.100

hello welcome once again to Leto as well I'm Steeve Leto so you want to talk about whether or not you can flip off the cops can you flip off the cops what I'm talking about of course is a gesture that is universal believe it or not in its recognition and it's I'm not gonna do it on camera but when it's when you hold your hand up like this but you don't use that finger that finger that finger or your thumb and you simply have the one finger extended and you often do it with your hand facing that way towards somebody and you do it as an expression often of your opinion of the other person's driving however some people are tempted and actually do make that gesture towards police officers to let the police know what they think of them and you also will occasionally hear of this being done by somebody who is famous or someone who's being harassed by the press or someone who's just wanting to show some displeasure towards somebody else and they'll make this gesture so I believe it or not there's actually quite a bit written about this and I highly recommend if you've got some time to kill and don't didn't you know don't mind reading stuff that reads a little legalish there is a wonderful article that I'm gonna be basing pretty much everything I talk to you about right now called the digitus impute ekeus the middle finger and the law and this is written by a law professor named IRA Robbins and he is the Bernard T Welsh scholar and professor of law and justice at the American University Washington College of Law and this guy's got credentials he's got a JD from Harvard and his undergrad is from the University of Pennsylvania another fine school and he actually wrote a very lengthy I think like 80 page article on the legalities of flipping somebody off and when is it legal when is it not legal or is it illegal you know and it turns out a lot of it depends in the context but a lot of this has been ruled on by the courts and I remember years ago reading a story in the local paper in Michigan here about a guy who was driving along one day and he saw a police officer and he flipped flipped the cop off and the cop pulled him over and rode him up for something and I don't recall if he wrote the man a ticket for something else but anyways he filed an action in essence saying that he's being targeted because he'd made this gesture towards the police officer which the police officer you know then characterized as an obscene gesture and I recall that it got hashed out in courts here I don't know there's a reported case or not but it got thrown up because the judge just basically said hey look we have a thing called the First Amendment and you've got a freedom of speech and gestures can be considered speech and the gesture he was making he was just basically expressing his displeasure with you what can't he do that if I can yell at a cop hey I don't like you why can't I flip that cop off so we'll talk about this but you know again I want to thank professor Robbins this article is absolutely wonderful I will put the link below so you can read it as well if you want to but he starts off by pointing out that the middle finger is one of the most common insulting gestures in the United States the finger which is used to convey a wide range of emotions is visible on streets and highways in schools shopping malls and sporting events in courts and execution chambers in advertisements and on magazine covers and even on the hallowed floors of legislatures I can think of a few album covers I've seen it on for recording artists as well despite its ubiquity however great word ubiquity a number of recent cases demonstrate that those who use the middle finger in public run the risk of being stopped arrested and prosecuted fine and possibly even incarcerated under disorderly conduct or breach of peace statutes and ordinances this article argues that although most convictions are ultimately overturned on appeal the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights violates fundamental principles of criminal justice wastes valuable judicial resources and defies good sense indeed the US Supreme Court has consistently held that speech may not be prohibited simply because someone may find it offensive criminal law generally aims to protect person's property or the state from serious harm but use of the middle finger simply does not raise these concerns in most situations with schools and courts as the exceptions so we're talking about you flipped somebody off are you gonna get in trouble and if so why and should it happen so he starts off by pointing out that a man named Robert Lee Coggan got some Fame in 2003 when he allegedly gestured with his raised middle finger as he passed a motorist on a Texas Highway he was convicted of disorderly conduct and fined 250 dollars during the next year Coggan successfully challenged his conviction and it cost him $15,000 in legal fees to do it but a Texas appellate court ultimately acquitted Coggan and left open the possibility that motorists could be prosecuted for using a middle finger gesture under Texas law but that's only if the gesture was accompanying a road rage or reckless driving situation so in others the gesture by itself is not actionable at least according to that court so he points out that the and this is one of the fascinating things if it's speech if if if the gesture is speech then the question is what exactly is somebody saying they flip you up like I said the the situation I think of most commonly is someone is expressing their displeasure as someone else as inept driving okay the times where I'm tempted to use that gesture is usually when I see someone do something remarkably stupid like run a red light or almost kill me and those people deserve it so the middle finger gesture serves as a nonverbal expression of anger rage frustration disdain protest defines comfort or even excitement at finding a perfect pair of shoes and that is a quote from a case which I'm not going to get into here but the gestures appeared on streets and highways and schools shopping malls concert venues stadiums courts and execution chambers as you can imagine a guy who's about to get executed might flip off the guy who's about to kill him what do you do stop the executions to get charged the guy with that also it's been seen in advertisements magazine covers and even in the hallowed floors of although its meaning has remained relatively constant over time the middle finger gestures like the f-word and has become part of the American vernacular and in the process it's becoming less and less taboo the stories that we were talking about illustrate the alarming fact that individuals who use the middle finger do run the risk of arrest prosecution fines and possibly incarceration we'll get to one of those despite the fact gesture often serves as a non-violent means of releasing stress or expressing frustration and that's true you know most the time there's a weird traffic incident somebody almost kills somebody and the person and the other car flips them off they both go their own way that problem resolved that's the end of it unless you call the cops have someone arrested so you know that that that does often not lead beyond that the criminal law generally aims to prohibit serious harms a person's property of state nonetheless our laws have criminalized acts that go well beyond fundamental offenses to include behavior that threatens highly intangible harms about which there is no genuine consensus and that's one of those things where people often talk about you know what's the corpus delicti what's what's what's you know who's who's been harmed by something you know and I've heard people say well I'm speeding five over Who am I harming well that's one thing if you flip somebody off who are you harming are you harming them you know I've heard people say if you flip somebody off someone else might see it are you harming them bystanders innocent bystanders Worm you flip somebody off so interestingly the professor here goes into a great history of how far back the flipped middle finger goes and what's sad is is a really dumb story that goes around about how it started with a bow and arrow fight at a place called AG in court in France and that's not true it's a Snopes kind of story it actually goes back much further than that the weight of historical evidence says that the middle finger gesture actually originates more than 2,500 years ago and for instance if you're it appears as far back as ancient Greek texts in one called the clouds Aristophanes used the middle finger gesture as a phallic symbol and in 330 BC the book lives of eminent philosophers refer to the middle finger gesture a reenactment of a meeting between Diogenes and demosthenes has Diogenes expressing his dislike of the pompous orator by extending his middle finger and stating there goes the demagogue of Athens so the middle finger has been around a long long time probably about as long as humans it had metal fingers but using it as that form of a gesture likewise goes back quite far and one of the things that the professor points out over several pages is all the different cultures that recognized this because as you can imagine in ancient Greece they didn't speak English surprise surprise you know the people in the Bible also didn't speak English I know the Bible is in English but they weren't they weren't talking English and so the fact that cultures and societies around the world have recognized and used this as a gesture that expresses these things we talked about shows that this is a universal gesture and it's kind of like waving to somebody you know waving is a universal gesture also handshakes are not quite Universal but again recognized across many different cultures and so it's interesting how these things can can do that so the fact that we're looking at the flipping off of somebody as being verbal speech it's it's not we're communicating something and in communication of ideas can be protected as quoting about speech under the First Amendment but in reality it's not speech but but you know it's an interesting thing so so the middle finger and the first amendment is the next section of the paper and he gives the example of a woman who flipped off a crossing guard near her children's school and the crossing guard got the woman arrested and when she's brought into court her name is Laura Benson she got lectured by a judge who basically said you know you need to you need to you know you have more respect for crossing guards but that one didn't get litigated all the way to the Supreme Court or anything but um he points out that the First Amendment as I just said doesn't just protect speech in the purest sense speeches words that I'm speaking and obviously it protects the written word and it protects other forms of expression so for example the court has extended First Amendment protection to nonverbal expressive acts such as flag burning sit-in protests or even displaying a US flag with a peace symbol affixed to it in protest and I presume that's probably in violation of law says you can't deface an American flag so the court always analyzes these things under the concept of the First Amendment and that makes complete sense so the first question then becomes is if in fact flipping somebody off is a First Amendment protect above form of speech you have to look at the other things that are not protected so one example is fighting words and fighting words are defined by a case called Chaplinsky versus New Hampshire where the court said that words which by their very odd Reince inflict injury or tend to incite an immediate breach of the peace are fighting words and they talked about the context in which it occurs but they didn't give explicit guidance on how to determine what fighting words exactly were but the courts never directly addressed whether the middle finger gesture constitute fighting words but it has decided a case involving an individual's use of the word f with three letters following it so I'll refer to that as the F word okay in Cohen versus California the court overturned the conviction for disturbing the peace by offensive conduct where the defendant was arrested for wearing in a courthouse a jacket then had the words on it asked the draft and the court said those aren't fighting words those are just a man expressing his political opinions regarding the draft presumably and so those aren't fighting words and most people I think of you said hey quick how would you put into words the fact that someone's flipping you off what are they what are they saying you are they saying something to you most people would say yeah that's fu you know the word uy oh you so the four-letter word F and then U is what they're saying to you and if that's not considered fighting words then I think that gesture would be okay the next question of course is is is being flipped off is that obscene is it obscene because it has some kind of sexual connotation to it if in fact it means what I just said it does and so you can be arrested for obscene language in some certain circumstances so the lower courts have ignored prevailing Supreme Court obscenity jurisprudence and issued rulings that violate the First Amendment sometimes when they convict people for yelling things out like eff you [ __ ] to a public highway worker and I apologize for using that word but it's a quote but also I don't think that's considered obscene these days and so the middle finger gesture traditionally has been associated with male genitalia it undoubtedly retains its phallic connotation but it does not follow in the current legal definition obscenity so it's not obscene to give someone the middle finger and he talks about what the standards are for determining of something obscene as a three-part test in Miller versus California and he points out that of the three prongs of Miller versus California it doesn't meet any of the three let alone all of the three the question is is it profane or offensive because the history of the law of free expression is one of indication in cases involving speech that many citizens may find shabby offensive or even ugly it has firmly settled it under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some hewers but it's possible that some profane or offensive speech might cause you trouble but he points out that most of that again doesn't rise this level or at least the the making of this gesture wouldn't rise this level and he talks about for instance all the different places where they just this including an episodes of Seinfeld and apparently I'm guessing during the show Springer Jerry Springer's probably had guests to make that symbol or a sign at him or at each other or at the camera so here is the situation are there any places where it's not appropriate okay so in other words if you're out in public and you do it to another person you're probably okay if you're out in public you do to a police officer he might harass you he might give you a ticket or write you up for something but you'll probably win that it just might cost you some money but yeah if the police have to write you up for that is harassment but the question is he points out it's cops classrooms and courts so let's discuss cops first convictions for use of the middle finger often arise when it's used in the presence of police officers through disorderly conduct or breach of the peace statutes and ordinances police officers have enormous discretion in making arrests they often use that power to arrest individuals whose offense consists of nothing more than displaying the middle finger and he gives a bunch of examples and he says for example disorderly conduct or breach of peace convictions have resulted from the following circumstances a state trooper observed a garbage truck driver giving the finger to drivers to other drivers not-not-not the trooper but two other drivers an unruly bar patron who has been escorted out of a nightclub by a police officer gave the finger to the officer during a subsequent encounter an officer observed a woman giving the finger to drivers who honked their horns when she hesitated at a green traffic light now seems me to honking in that situation is a perfectly appropriate her flipping them off maybe not so much appropriate but the response is you flip her off back it's an arms race or a finger race take your pick a University alumnus gave the finger and said a few to two officers in a university library I guess it might depend on the volume and a juvenile gave the finger and shouted you ever to officers as he passed they're parked patrol car in all but one of these cases the conviction was overturned on appeal the Ohio Court of Appeals upheld a disorderly conduct conviction distinguishing non personal language not directed toward a party our officer from offensive language specifically directed toward a particular officer the court reasoned that the defendant sought out the officers and continued to use the abusive language and the middle finger gesture even after officers asked the defendant to desist that did not go to the US Supreme Court however that was simply an Ohio Court of Appeals case case law and commentary as well as practicality suggests that society should expect police officers based under experience training and a legal obligation to preserve the priest the peace to exist exercise restraint and tolerance when faced with criticism and offensive speech and that's the thing you know police officers have got a tough job but guess what you signed up for it and later on courts have addressed whether or not officers should be held to a higher standard than the average citizen when faced with verbal criticism or offensive speech justice Powell of the Supreme Court addressed the issue in a concurring opinion said a properly trained officer should exhibit a higher degree of self-restraint than the average citizen would exhibit in similar circumstances thus the officer should be less likely to react violently to offensive language or criticism later on that view gained support in a case called city of Houston versus Hill when Justice William Brennan for the majority wrote that a police officer should exercise a higher degree of restraint than a private citizen when faced with vulgar or offensive language or behavior the court examined the constitutionality of a municipal ordinance have prescribed interrupting a police officer in the performance of the officers duty now that did not go into whether or not someone can flip off the cops but that went into whether or not if you walked up to and started trying to interact with police officers who didn't want you interacting with them do they have the right to either stop you or do they have the right to charge you with something for interfering with them if you are simply speaking arguing or yelling at them which is something I've spoken about before when you know you go up to a police officer instead of screaming at him while he's trying to do his job you might upset him to the point where you get rid of or something so you have to understand and this is what the the professor draughts article professor robbins says is that the law is not completely settled in this a flipping off of a police officer or the flipping off of a person and being charged has not explicitly been ruled on by the US Supreme Court so until they actually rule on yes you are allowed to flip off a cop or no you're not allowed to flip of a cop we have to speculate on what they might do based on lower court rulings and what they've ruled on some cases that are related and how they might you know work those things out but he does point out that the state of the law is this state and federal courts in the u.s. are divided on the extent to which officers should be required to tolerate offensive speech and the extent to which the middle finger gesture is protected by the First Amendment some jurisdictions have adopted the reasoning of Hill and justice Powell's concurrence in Lewis finding that is reasonable to expect police officers to abide verbal criticism for example the US Court of Appeals for the Second Circuit held that an individual's right to criticize the police without reprisal is respected by the First Amendment and this speech directed at police officers will be protected unless it rises far above mere inconvenience annoyance or unrest in a case in which an individual gave the middle finger to a police officer the Ninth Circuit held that such expressions of disapproval of the officers actions constitute protected speech noting the police may not exercise the awesome power at their disposal to punish individuals for conduct that is protected by the First Amendment but the Supreme Judicial Court of Maine noted that police officers must exercise the greatest degree of restraint and dealing with the public holding the nature of the experience training and responsibilities of police officers should be considered when deciding whether conduct amounts to fighting words an Alabama Court found that sense officers encounter offensive language and conduct on a regular basis and they are trained to handle potentially volatile situations without physical retaliation words or gestures that might provoke an ordinary person to respond violently do not necessarily amount to fighting words when directed toward an officer these cases do not hold that any and all speech directed toward police officers protected rather they suggest that the fact that a trained police officer is involved in an encounter is an important consideration when determining whether an individual's conduct constitutes fighting words in other words the court might reach a different conclusion under the fighting words doctrine in a case involving an encounter between two citizens and a case involving a citizen and a police officer so it's all stuff to keep in mind and like I said and he points out the courts have addressed this differently over the years he says that the best approach he's seen as illustrated by decision of the Supreme Court of North Dakota reversing the conviction of a man who during a confrontation with police officers gave them the middle finger and said effing bitching cop f you f my ass and you don't know who your effing with finding that there was no evidence that the language or conduct tended to incite an immediate breach of the peace based on testimony from several witnesses who said that they would not have reacted violently to the defendants words and gesture the court overturned the disorderly conduct conviction the court noted that whether particular words are fighting words depend on the circumstances of their utterance and the fact that the words are spoken to police is a significant circumstance so that may have been different if he'd done that to an individual but the North Dakota Supreme Court says well I get it to a cop and they are held to a slightly higher standard now he also writes when it comes to mere use the middle finger gesture however law enforcement officers should not have authority to make arrests for speech or conduct that rises only to the level of a minor offense or annoyance because the First Amendment protects offensive vulgar or unpleasant speech in the case of speech and gestures directed toward a police officer the Supreme Court has stated that officers should expect expect to tolerate some offensive speech and that the training and experience should prepare them to exercise a higher level of straight restraint than an ordinary citizen arrests for use of the middle finger and the presence of a police officer undermine the Supreme Court's steadfast recognition that the rights to criticize the government lies at the core [ __ ] of the first amendment so he's pointing out that you ought to be able to flip off a cop and you probably are allowed to flip off a cop but a cop might have rescue for it and charge you with something which you may then have to fight and work your way up the system that's the current state of the law I know people right now are saying Steve that's that's not a good answer well no but that's the correct answer that's the current answer that's that's what the answer is now okay and until one of these cases makes it to the Supreme Court that's the answer the question is what about other circumstances one of the best examples he gives us if you're at school a public school system okay the First Amendment ensures broad protection of adults public speech but the US Supreme Court has limited the speech rights of elementary and secondary school students on school grounds and there been a series of cases since about 1969 that have addressed significant things regarding student speech on campus and he points out that a school's authority to punish student speech may not extend beyond school grounds but they certainly can control it on the grounds so it appears settled that when a student uses the middle finger on campus school officials may either punish the student administrative Lea or seek to sanction the conduct through the state's police power and then off campus they don't have that right and one of the best things I think I saw was a kid who saw a teacher not at school but someplace out about in town and he flipped the teacher off and the teacher went and complained somebody to school and the kid got punished at school for what he'd done and they said no you can't regulate that kid's speech off campus so that's that the final place we've got to talk to about this with respect to where you can and cannot use the middle finger is in court in the courtroom and using the middle finger as a gesture in a public place Robyn's points out is almost always a valid exercise free speech however that changes when you set foot in a courtroom and I know people out there right now are some of them are getting very very upset saying why do laws and rules change within a courtroom there's a good reason for it as he points out judges should have the ability to prohibit use of the middle finger gesture during Lee during legal proceedings because courts perform an essential public function the administration of justice and the integrity of which can be threatened when an individual behaves in a disruptive and disrespectful manner in a courtroom using the middle finger in court especially when directed toward a judge or an officer of the court threatens to inhibit the fair and efficient administration of justice erode the authority and legitimacy the judicial system and jeopardize the constitutional rights of the litigants and think about this okay you're in court you're a defendant on trial and you decide to flip off the judge now you might think is that's your right free speech it's not helping your case on you don't you want to judge be impartial but there is also a thing about the judge has you know the right to control what happens in this courtroom and and same thing of if a person starts screaming or yelling or simply speaking out of turn a judge has got to keep things under control so you know controlling how people speak when they speak what they you know that's all things that fall within the jurisdiction of the judge so in order to prevent these harms from occuring judges should have the authority to punish individuals who intentionally disrupt the judicial proceedings by giving the middle finger to a judge jury or an officer of the court this Authority is most often exercised to the power to hold individuals in contempt of court the contempt power is of course an old and ancient authority and it goes back many many years and so I'll give an example a Massachusetts appellate court overturned a contempt conviction where a woman gave the finger to her alleged abuser as he exited the courtroom after a judicial proceeding the court found that the gesture was a single isolated event it was not directed at the judge but rather at the person who the defendant claimed had beaten and threatened her so the guys being led out of the courtroom and she flips him off and the judge trying to be fair here holds her in contempt and of course that got thrown out on appeal because of what I just told you so there are other examples where people have done these things in a courtroom and depending on who they directed at they may or may not get in trouble for so a judge of the court of the Common Pleas of Philadelphia ordered Walter Williams to prison at the conclusion of a probation revocation hearing Williams registered his displeasure by saying fu to the judge punctuating a statement with his middle finger much to Williams further dismay the judge found him guilty of two counts of direct criminal contempt and imposed two additional consecutive sentences of five months and 29 days one for the language and one for the gesture on appeal the Superior Court of Pennsylvania found that Williams's behavior satisfied each of the elements of contempt but because the gesture and accompanying offensive word have the same meaning and were used simultaneously the court concluded that Williams could only be found guilty of a single count of criminal contempt so that gets us back to what does it mean I think we know what it means if you want to get a verbal you know like it was you hit the subtitle it that's pretty much what it means but the conclusion the professor Robbins draws is that most reported prosecutions for use of the middle finger involve a private citizen flipping up an authority figure usually a cop but sometimes a judge or a school principal the u.s. supreme court repeatedly is emphasized as speech critical of the government deserves a stringent and steadfast First Amendment protection courts have interpreted this sweeping statement to include direct verbal criticism and challenges to most government officials as long as the speech does not rise to level of fighting words obscenity or defamation so flipping somebody off does not rise to that level so as he ends he says in other words if these days the bird is flying everywhere it is a small price to pay for the freedom of speech that our Constitution protects so to summarize even more narrowly than he just did flipping up a cop you're probably okay l do you might get in trouble for it but you probably win it later flipping off somebody in school if you are in public school in elementary or middle school possibly even high school probably not a good idea off grounds go right ahead if you feel like it and in court wouldn't recommend it but again if you feel that strongly about it you can always litigate it later so that's the law on using the middle finger as a gesture in America today I will put the link to the well-written wonderful article below questions or comments para my way otherwise I'll talk to you later bye you

Channel: Steve Lehto

Views: 79,672

Rating: 4.9115734 out of 5

Keywords: lemon law, michigan lemon law, lemon law attorney, lemon law lawyer, http://www.lehtoslaw.com

Id: 2rq7cBD6Ds4

Length: 31min 57sec (1917 seconds)

Published: Tue Feb 26 2019