Ridge Runner Chronicles: The middle finger and the police
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By Bill Hoagland
Several of my law school buddies and I were recently discussing an interesting law suit. It seems that one Greg Bombard, of St. Albans, Vermont, gave a local policeman “the middle-finger salute” and was promptly arrested for disorderly conduct, jailed overnight and then required to defend himself against the charge of disorderly conduct for over a year before it was dismissed. For clarification, Bombard did nothing other than display the middle finger in this incident. The trial judge finally realized that giving the middle finger to a policeman, without more, is a protected right of free speech and an overwhelming number of court decisions make this quite clear. After the criminal charge was dismissed, Bombard sued the police officer and the city for damages resulting from a violation of his civil rights. Just before this case went to trial, the city settled the case by paying Bombard and his lawyers $175,000.
Displaying the middle finger has always been regarded as an expression of contempt, regardless of what you call it. “Flipping the bird”, “extending the extreme extremity”, and “the one fingered salute”, are just a few of the names given to this activity. You may be surprised to learn that even in the Roman Empire, displaying the middle finger was recognized as a means of expressing contempt. It occurred enough in Roman times that the Romans had a specific name for this method of expression; they referred to it as “digitus impudicus”.
So that no one misinterprets when you can express yourself by displaying the middle finger without consequences, I guess we need to clarify that there is free speech and then there is “protected” free speech. Some free speech is not “protected”. Free speech is not protected if you are in court, in school or in the military and you can rightly expect potential reprisals if you display the middle finger in those situations. Likewise, if your display of the middle finger occurs as a part of a larger pattern of behavior, such as resisting arrest or speeding, your exercise of free speech in that situation will not excuse your other criminal conduct.
Some societal commentators have lamented the fact that the middle finger is used so much today that it no longer has the impact that it used to have. In other words, it isn’t necessarily contemptuous any more. I must admit that (usually in response to some razzing), I have been known to “flip the bird” at some of my friends as an expression of endearment, not contempt. My friends usually respond with their own “flipping of the bird” and their gesture is also (presumably) intended as an expression of endearment, not contempt. I’m curious: would the Romans say this constitutes a mutual display of “digitus amicitia” instead of “digitus impudicus”?
If you are interested in learning more about the legality of displaying the middle finger, I suggest an excellent law review article written by Professor Ira Robbins, entitled “Digitus Impudicus, the Middle Finger and the Law”, which can found at www.digitalcommons.wcl.america.edu. In fact, this article ought to be required reading for all law enforcement officers so that they can better understand the legal distinctions involved with this activity and hopefully avoid the ridiculous result in the Greg Bombard case.
• Bill Hoagland has practiced law in Alton for more than 50 years, but he has spent more than 70 years hunting, fishing and generally being in the great outdoors. His wife, Annie, shares his love of the outdoor life. Much of their spare time is spent on their farm in Calhoun County. Bill can be reached at [email protected].
