Dear Readers;
In my last column, "Themthere's fightin' words, boy," we looked at two cases—Chaplinskyv. New Hampshire and Cohen v. California—as backgroundfor revisiting the question of whether “flipping the bird” is constitutionallyprotected speech. To recap briefly, in Chaplinsky, a 1942 case,the Supreme Court carved out a “fighting words” exception to free speech—words“which by their very utterance inflict injury or tend to incite an immediatebreach of the peace.”

Twenty-nine years later, the Supreme Court held in Cohen thatthe words “Fuck the Draft” did not constitute obscenity:

Whatever else may be necessary to give rise to the States’broader power to prohibit obscene expression, such expression must be,in some significant way, erotic. It cannot be plausibly maintained thatthis vulgar allusion to the Selective Service System would conjure up suchpsychic stimulation in anyone likely to be confronted with Cohen’s crudelydefaced jacket.

Neither was Cohen’s message “fighting words,” because “it was clearly ‘notdirected to the person of the hearer.’” Thus, Cohen’s message was constitutionallyprotected speech that did not run afoul of Chaplinsky’s “fightingwords” exception to free speech.Thirty-six years later, in 2007, a group of cyclists are buzzed, andone of them flips the bird at the offending vehicle. Was this gesture constitutionallyprotected speech, or was it the equivalent of “fighting words?” ReaderK.F. wrote in to say that the bird is protected speech, and supplied alist of cases addressing that issue. First on his list of cases was Cohenv. California, which he argues resolved the issue long ago, and “whichwould appear to be directly analogous.”Although I am a strong proponent of civil liberties, I don’t think thatCohennecessarily supports the argument that “the bird” is protected speech—orthat either the facts or the holding in Cohen, are directly analogousto flipping the bird. There are at least two reasons for this conclusion.First, the Court found that Cohen’s message was not “directed to the personof the hearer.” In comparison, flipping the bird is “directed to the personof the hearer”—that’s the whole point of the bird, after all—and thus,would not necessarily be protected speech under a Cohen analysis.Second, the Court held that Cohen’s message was an emotive expression ofa dissident view. In comparison, can “the bird” be said to be an emotiveexpression of a dissident view? Well, maybe, maybe not. Could it be, forexample, an emotive expression of a dissident view that cyclists have rightsto the road, and will not tolerate the abuse of those rights? What do youthink?However, in at least one respect, Cohen is directly analogousto flipping the bird. flipping the bird: In Cohen, the Court foundthat the message Paul Cohen scrawled on his jacket—“Fuck the Draft”—wasnot lewd or obscene, because it could not possibly be construed as incitingerotic stimulation. Flipping the bird at an offending motorist would notbe lewd or obscene either, for the same reason.The truth of the matter is that, as with all legal issues, the questionof whether flipping the bird is protected speech is more complex than asimple “yes” or “no” answer will convey, and is highly dependent upon boththe particular facts of an individual incident, as well as the law of thejurisdiction in which the incident occurred. Let’s see why. In additionto Cohen, reader K.F. cited several other cases, many of which rely atleast partially on Cohen, to support his argument that “the bird” is protectedspeech:• Ware v. Denver (Supreme Court of Colorado, 1973).In Cohen v. California, the Supreme Court found that the words “Fuck theDraft” were an emotive expression of a dissident view, and thus, protectedspeech. In Ware v. Denver, the issue before the Colorado Supreme Courtwas a variation on that theme—at a meeting with U.S. Department of Justicerepresentatives held on the University of Denver campus, Ware yelled “fuckyou” in response to statements made by the Department of Justice representatives.Ware was arrested and convicted of breach of the peace. On appeal, theColorado Supreme Court analogized Ware’s use of “Fuck you” to Cohen’s useof “Fuck the Draft,” holding that “it is apparent from the record thatthe outbursts of the defendant and others were responses to political opinionsand the voicing of contrary opinions.”• Commonwealth v. A Juvenile (Supreme Judicial Courtof Massachusetts, 1975). While in a Boston department store, a juvenilebegan yelling, first at a saleswoman, and then a security guard, callingthem “f_ __ a_ _” and “f_ _ pig.” When he was asked to leave, he “gesturedby raising the third finger of his hand, symbolizing what he was verballyexpressing.” This outburst continued for 40 minutes, and he was eventuallyconvicted on a charge of being a disorderly person. On appeal, the MassachusettsSupreme Court held that the disorderly person statute was unconstitutional,because it prohibited constitutionally protected speech, as well as speechwhich is not constitutionally protected under Chaplinsky. The Supreme Courtdid not weigh in on whether or not “A Juvenile’s” speech was constitutionallyprotected, because the statute itself was not constitutional.• City of Oak Park v. Smith (Michigan Court of Appeals,1977). Smith was improperly using a lane on the wrong side of the road,and nearly hit an unmarked police car in that lane. Smith testified thatthe officer, in civilian clothes, gave him a “menacing” look, and in response,Smith gave the officer “what is commonly known as the finger, by extendinghis index finger upward, and his lips were observed to move in what [theofficer] believed to be an obscene utterance.” The Court further describedthis gesture as “digitus impudicus…a semiotic insult…of ancient origin.”Smith was convicted of violating an ordinance which made it “unlawful forany person to insult, accost, molest, or otherwise annoy, either by wordof mouth, sign, or motion, any person in any public place.” The MichiganCourt of Appeals reversed Smith’s conviction, holding that “as a matterof law, the gesture did not amount to fighting words,” because “the ‘menacing’look came before and in fact provoked the offending gesture.”• Estes v. Texas (Texas Court of Appeals, 1983).At his high school graduation, Estes shook the hand of the principal, acceptedhis diploma, and then “at a distance of not more than a few inches fromthe principal’s face, extended the middle finger of his right hand under[the principal’s] nose.” Estes was convicted of breach of the peace. Inaffirming Estes’ conviction, the Texas Court of Appeals noted that eventhough the principal did not attack Estes, he had to use the emotionalself-control he developed “as a part of his position as a high school principal”in order to resist his “animal instinct to retaliate,” and that “such gestureto an average person could have constituted ‘fighting words.’”• Klein v. Smith (U.S. District Court, Maine, 1986).While seated in his father’s car, Klein “extended the middle finger ofone hand” towards his high school teacher, after hours and off the schoolgrounds. He was suspended from school “pursuant to a school rule that providesthat students will be suspended for ‘vulgar or extremely inappropriatelanguage or conduct directed to a staff member.’” The court held that “anypossible connection between his act of “giving the finger” to a personwho happens to be one of his teachers and the proper and orderly operationof the school’s activities is…far too attenuated to support disciplineagainst Klein for violating the rule prohibiting vulgar or discourteousconduct toward a teacher.” Furthermore, the court held that “the gesturedoes not constitute ‘fighting words’…” because the teacher did not respondviolently, nor had other teachers responded violently upon being giventhe finger numerous times during their professional careers.• Brockway v. Shepherd (U.S. District Court, M.D. Pennsylvania,1996). While riding as a passenger in a car, Brockway “gestured at[a police officer] with his middle finger.” The Court noted that “no explanationfor such conduct is provided,” and that “the meaning of this gesture iswell-known and need not be repeated here.” Brockway was arrested and chargedwith disorderly conduct. The charges were all dismissed. Brockway fileda civil rights action against the police officer, for an arrest withoutprobable cause, meaning that, because he had not committed a crime, theofficer had no “probable cause” to arrest him. In holding that Brockway’sgesture was not obscene, the Court noted that “the type of gesture at issuehere…is not sexual in nature. Rather, the conduct is intended to expressdisrespect for and to offend the police officer…using a base term for sexdoes not change the disrespectful, offensive communication into one thatappeals to the prurient interest.” The Court held that while the gesture“may support a charge of disorderly conduct,” it could not be charged asdisorderly conduct under the wording of that particular section of thestatute, which applied to “obscene gestures,” and that “standing alone,profane or vulgar language is not itself obscene and does not amount tofighting words. The same principle applies to the use of a gesture, whichrepresents profane or vulgar language, and the communication must be lookedat in its entirety and in context to determine whether an exception tothe general protection of speech applies…More specifically, [that sectionof the statute] does not proscribe the display of a person’s middle fingerwith the ordinary intent (i.e., to show disrespect) because such conductis not sexual in nature. The above discussion…is not intended to be a commenton whether the gesture at issue violates any other criminal provision.”• United States v. McDermott (U.S. District Court,E.D. Pennsylvania, 1997). McDermott, an enlisted Navy man, was sleepingin his car outside the enlisted personnel club at an Air Station, ratherthan taking a risk on driving home after consuming eight beers. He wasrousted by security personnel, and arrested for his use of “salty sailortalk” after saying “this is bullshit” is response to their questions. Hewas found guilty of disorderly conduct, and appealed. Reversing McDermott’sconviction, the District Court held that “McDermott’s use of coarse wordsdoes not constitute fighting words.”• Sandul v. Larion (United States Court of Appeals,6th Circuit, 1997). Sandul, a passenger in a truck driving by an anti-abortionprotest, leaned out the window, shouted “f-k you,” and “extended his middlefinger to the group.” A police officer observed this, and arrested Sandul“for trying to start a riot.” Sandul was acquitted of the disorderly conductcharge, and filed a civil rights action against Larion, the police officer.Sandul lost his case, and appealed. Analogizing Sandul’s case to Cohenv. California, the 6th Circuit actually got Cohen wrong, claiming erroneouslythat “in Cohen, “the words of individual expression were also ‘f-k you,’”and thus, Sandul’s use of “the f-word” was not in and of itself criminalconduct. The 6th Circuit also held that Sandul’s words were not fightingwords, because they were not likely to incite an immediate breach of thepeace: “Sandul’s vehicle was traveling at a high rate of speed on the oppositeside of the street, a considerable distance away from the protesters towhom the language was directed. Sandul was in a moving vehicle; the entireincident was over in a matter of seconds…There was no face-to-face contactbetween Sandul and the protesters.”• Nichols v. Chacon (U.S. District Court, W.D. Arkansas,2000). While driving down an Arkansas highway, Nichlols “intentionallydisplayed his middle finger in an upward gesture, several times” to Chacon,a police officer driving in the opposite direction. After being stoppedby the officer, Nichols apologized, explaining that he thought Chacon wasanother officer, Hutchens. Nichols was cited for disorderly conduct, foundnot guilty, and subsequently filed a civil rights action against Chacon,alleging a violation of his first, fourth, and fourteenth amendment rights.Like the 6th Circuit in Sandul, the Nichols court also got Cohen wrong,claiming erroneousluy that “in [Cohen], an individual, while in a publicbuilding, had the words “f__k you” displayed on his clothing.” Basing itsdecision on Cohen, Brockway, Sandul, and several other cases, while somehowmissing the particular circumstances under which those cases held thatthe offending words and gestures were protected speech, the Nichols courtbroadly held that the gesture “did not constitute ‘fighting words,’ andwas protected as ‘free speech’ under the First Amendment to the UnitedStates Constitution.”• In re S.J.N.-K (Supreme Court of South Dakota, 2002).In a store parking lot, a juvenile extended his middle finger and mouthed“the words ‘fuck you’” to Kindle, his former middle school principal. Hecontinued to do this several times as the car he was in stalked the principal’svehicle. The juvenile was found guilty of disorderly conduct. The SouthDakota Supreme Court upheld the conviction, noting that “this was not merelythe use of one profane word or one obscene gesture, it was an ongoing aggressionthat falls outside free speech protection…S.J.N-K’s act of retaliationagainst Kindle for not letting him skip the eight grade and advance tohigh school is not political speech. It was an unprovoked form of harassment,done but for no apparent purpose than to incite a violent reaction in Kindle.S.J.N-K is not relieved of guilt simply because his attempts to provokeKindle were unsuccessful.”• City of Landrum v. Sarratt  (South CarolinaCourt of Appeals, 2002). Sarratt was convicted of public disorderlyconduct after yelling profanities, including “the ‘f’ word,” at two peopleas they left the Municipal Court. In affirming Sarratt’s conviction, theSouth Carolina Court of Appeals held that “the determination of whetherprofane words constitute fighting words depends upon the circumstancessurrounding their utterance. Some of the factors to consider in determiningif profanity constitutes fighting words are the presence of bystanders,the accompaniment of other aggressive behavior, and whether the words arerepeatedly uttered.” The Court also noted that fighting words must be adirect personal insult, “directed at someone in particular,” and observedthat the only narrow exception to this rule was in prior cases involving“law enforcement personnel on the receiving end of verbal abuse,” in whichprofanity did not constitute fighting words “when the addressee, as a properlytrained police officer, is reasonably expected to exercise a higher degreeof restraint than the average citizen.” Because “Sarratt’s language, especiallyonce he directed vulgarities at Franklin’s mother, would incite an ordinaryperson to violence,” the Court affirmed Sarratt’s conviction.• Connecticut v. Deloreto (Supreme Court of Connecticut,2003). While an off duty officer was jogging, Deloreto was in a cardriving slowly beside the officer. Deloreto was “hanging out the driver’sside window, holding up his middle finger and yelling… ‘Faggot pig, I’llkick your ass.’” The officer asked what his problem was, and told Deloretoto “let it go.” Deloreto sped ahead, stopped, and started to get out ofhis car, saying “I’m going to kick your ass, punk.” The officer said “Don’tstart it” and continued jogging. Deloreto sped past him again, stopped,got out, and ran towards the officer. “He pumped his fists and stated:‘I’m going to kick your ass.’” The court record does not indicate how thisincident ended. One week later, another officer was in a store, when Deloretobegan confronting him, saying “You have a problem with me?” The officerresponded: ‘You give me the finger every time you see me. Please stop givingme the finger.’ [Deloreto] had gestured obscenely to [the officer] withhis finger five to ten times during the previous week before this incident.”Deloreto followed the officer out of the store, and said “I’m going tokick your punk ass” several times. Deloreto was charged with a breach ofthe peace and convicted. On affirming Deloreto’s conviction, the ConnecticutSupreme Court found that “the statements made by [Deloreto] constitutedtrue threats and, as such, were not protected by the federal and stateconstitutions,” and furthermore held that “threatening statements thatdo not rise to the level of a true threat may nonetheless constitute fightingwords that could be criminalized…consistent with the first amendment.”• Coggin v. Texas (Texas Court of Appeals, 2004).Coggin was tailgating a motorist, and flashing his lights at the othermotorist, who was “traveling too slowly.” Thinking Coggin was a law enforcementofficer who was pulling him over, the other motorist pulled into the rightlane, and as Coggin passed, he flipped the other motorist the bird. Themotorist called police, who cited Coggin for disorderly conduct; Cogginwas later convicted of the charge. On appeal, the Court reversed Coggins’conviction, holding that the gesture did not tend to incite an immediatebreach of the peace, because it was briefly made between strangers as onecar passed the other, and there was no actual or threatened violence.• Williams v. Mikles (U.S. District Court, W.D. Arkansas,2006). During an investigation of a dispute between neighbors, andan alleged assault, Williams told Police Chief Mikles to “shut his f mouth.”Williams was arrested on a charge of disorderly conduct, which was laterdismissed. Williams sued Mikles for violating his civil rights. Based onWilliams’ language, and the evidence that an assault had been committed,the District Court found that Williams had “engaged in ‘fighting words’and used abusive or obscene language in a manner likely to provoke a violentor disorderly response…” and dismissed William’s claim.So what does all this mean? Is “the bird” constitutionally protectedspeech? Or is it fighting words? As I noted above, the answer is highlydependent upon the particular facts of a case, and will even vary formone jurisdiction to the next. Generally, if “the bird” is an emotive expressionof a dissident view, it would be protected speech; none of the cases citedabove directly involve that issue, but Ware v. Denver is analogous. Thus,for example, flipping off the President of the United States would be protectedspeech under a Cohen analysis. And because “the bird” is not lewd or obscenein the legal sense of inciting prurient interest, its use can’t be prosecutedas a lewd or obscene gesture. That leaves us with “them fightin’ words.”If “the bird” constitutes fighting words under Chaplinsky, its use canbe prosecuted under a state’s breach of the peace statutes. Conversely,if it doesn’t constitute fighting words, it can’t be prosecuted under thatstate’s breach of the peace statutes.Some general principles to take away from these cases are that the birddoes not constitute fighting words if it is provoked by the other party’sactions (City of Oak Park v. Smith); do you notice the similarityof that ruling and the situation where the bird man flipped the bird ata motorist who just buzzed him?In some jurisdictions, the bird does not constitute fighting words ifit does not actually provoke a violent response (Klein v. Smith),while in other jurisdictions, no actual violent response is needed forthe bird to constitute fighting words (In re S.J.N-K). However,while holding that the bird is protected speech if it does not provokea violent response seems like a victory from the perspective of protectingcivil liberties, it comes at a cost: If the bird does provoke a violentresponse, it would presumably not be protected speech, and its use couldbe prosecuted. Thus, the requirement that there be a violent response forthe bird to constitute fighting words may act, in a legal sense, to encourageviolent responses to the bird.There’s one other distinction between these two holdings that has somebearing on whether or not the bird constitutes fighting words: Note thatin Klein, the bird was displayed one time, from a parked car, while in S.J.N-K, the bird was displayed multiple times, while the defendantwas following his target in a menacing manner.The bird has also been held not to constitute fighting words when itis made one time from a passing car (Sandul v. Larion, Coggin v.Texas), but has been held to constitute fighting words when mademultiple times (In re S.J.N-K), or from a close distance(Estes v. Texas). The “f word” has been held not to constitutefighting words when directed at a police officer in some jurisdictions(City of Landrum v. Sarratt), but has been held to constitutefighting words when directed at a police officer in other jurisdictions,and under other circumstances (Connecticut v. Deloreto, Williamsv. Mikles), and has been held to constitute fighting words whendirected at an ordinary person (City of Landrum v. Sarratt).Bringing the discussion back to the bird man—remember him? The guy whoseact of flipping the bird raised the question?—would his use of the birdbe protected speech? Could it, for example, be protected under a Cohenanalysis, as an emotive expression of a dissident view? It’s an interestingquestion. Or under an Oak Park analysis, would the buzzing of the cyclists—anact that precipitated the bird man’s use of his namesake gesture—mean thatthe use of the bird does not constitute fighting words? Almost certainly.Under some analyses (Sandul v. Larion, Coggin v. Texas),the act of flipping the bird, one time, as vehicles were passing, wouldnot constitute fighting words, while the fact that the bird man’s use ofthe bird provoked a violent response means it would constitute fightingwords under other analyses (Klein).Finally, in a somewhat different vein, what about that question of “provocation”that we discussed in Deliveranceof the bird man? Does the bird reallyconstitute provocation, which would be a defense to civil or criminal charges?On taking a second look, probably not, although once again it may dependon the circumstances and jurisdiction. Provocative words have generallybeen held to not be a justification for battery; thus, in many jurisdictions,the bird man’s act of flipping the bird would not be a defense for the“enraged and rather large passenger’s” assault of the bird man. However,in at least some cases, words have been held to be provocation, if it shouldhave been assumed that the words would lead to physical retaliation.
 
Finally, as I've mentioned in my most recent columns, I am planning a series of speaking engagements across the country in conjunction with the publication of my new book, "Bicycling & The Law." If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com. The booking information will also be included in "the fine print" at the end of this and every column. I'm looking forward to meeting as many of my readers as possible; hopefully, I'll be speaking at your event soon, whether in the swamps of the deep south, or in the hills and forests of the mid-Atlantic.
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

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Now read the fine print:
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).Mionske is also the author of Bicyclingand the Law, designed to be the primary resource for cycliststo consult when faced with a legal question. It provides readers with theknowledge to avoid many legal problems in the first place, and informsthem of their rights, their responsibilities, and what steps they can takeif they do encounter a legal problem.If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.