< Free Bird


Friday, March 05, 2010

BROOKE GLADSTONE: Wired Magazine reported this week about an unusual legal case now underway in Oregon. A 46-year-old retiree named Robert Ekas is suing his local police department because he says they've repeatedly cited him for bogus moving violations. Ekas says that the real reason the cops keep pulling him over isn't his driving. It’s because he keeps giving them the finger. Professor Ira Robbins is the author of the article Digitus Impudicus: The Middle Finger and the Law. He says that generally American courts protect the flipping of the bird. When people do end up in court for giving the one-fingered salute, they're usually let go.

IRA ROBBINS: Almost always the case is dismissed, or if there is a conviction, it’s reversed on appeal.

BROOKE GLADSTONE: So just to be clear, Americans do have the right to flip off their local police officers.

IRA ROBBINS: It seems to me there is a constitutional right under the First Amendment to flip off police officers. I'm not saying it’s wise to do it. I'm not going to give the finger to a police officer, but I'm saying that it’s constitutionally protected.

BROOKE GLADSTONE: That is your opinion, but it is not yet a settled matter.

IRA ROBBINS: Well, it’s not a settled matter as a national question, but in some jurisdictions it is a settled matter. In Pennsylvania, for example, courts, time and again, have said that just flipping off the bird with no other criminal behavior attached is constitutionally protected. And last year, a man who was arrested and prosecuted for this sued the police department and ended up getting a 50,000-dollar settlement.

BROOKE GLADSTONE: Now, in your article you talk about the history of this gesture, and you write that while some of the origin stories are probably apocryphal, the digitus impudicus goes back at least to ancient Rome.

IRA ROBBINS: It really does. It goes back at least 2500 years or so. The digitus impudicus, meaning the “impudent finger”, goes back to Emperor Caligula, who extended his middle finger, and that is recorded.

[BROOKE LAUGHS] Augustus Caesar once banished an actor from Italy, from the whole country, for giving the finger to an audience member who had hissed him during a performance. To the best of my recollection and research, though, the first recorded instance of the digitus impudicus in the United States was in 1886, when there was a professional baseball team photograph with two teams in the same picture, the Boston Beaneaters and the New York Giants.

[BROOKE LAUGHS] Even then New York and Boston had a great baseball rivalry, but some of the baseball players were giving the finger in the photo just as some sort of implicit protest.

BROOKE GLADSTONE: [LAUGHS] Obviously, you see this – actually, I see this too – as a free speech issue. But one of the few limitations on speech that we have in this country is a restriction on obscenity. Could the middle finger legally be considered an obscene gesture and, therefore, fall under those restrictions?

IRA ROBBINS: I think we generally have a right to free speech and free expression. There are some exceptions to that. For example, if a gesture or use of certain words are fighting words or something is obscene or something is profane, under a test that was developed approximately 30 years ago, then it would not be protected. I would argue that this is not obscene, that this is not fighting words, this is not profane. Why do people generally use the middle finger now? It seems to me to express anger, rage, maybe in a road-rage situation, defiance, protest. The Robert Ekas case in Oregon involves somebody who basically believes he has the right to protest police abuse, and he does that simply by using the middle finger gesture.

BROOKE GLADSTONE: Now, no one knows for sure how the Supreme Court would decide this case, but one advocate might be Justice Antonin Scalia, because when The New York Times asked him for his response to the people who objected to his participating in weekly Mass, his reported response was the Sicilian equivalent of the middle finger.

IRA ROBBINS: Well, I think that’s right, but I don't think that’s an indication that Justice Scalia will necessarily come out in a way that’s supportive of using that gesture.

BROOKE GLADSTONE: But he’s a finger-giver.

IRA ROBBINS: Well, he gave the equivalent of the finger but just this month, or last week rather, Senator Jim Bunning gave the finger to some journalist. Why wasn't he arrested and prosecuted for disorderly conduct?

[BROOKE LAUGHS] Is it okay to having the Bunning salute but not the –

[BROOKE LAUGHS] - one-fingered salute or flipping the bird?

BROOKE GLADSTONE: Now, you've mentioned that you don't think it’s wise to flip the bird at the cops, but are you yourself a bird-flipper?

IRA ROBBINS: Well, only on the radio. How’s that?


IRA ROBBINS: Well, seriously, normal people – I like to see myself as a normal person – sometimes get upset, sometimes get frustrated, sometimes get angry. It’s not intended to be obscene or profane or to incite anyone to do anything. It’s just an expression that I say is protected by the First Amendment.

BROOKE GLADSTONE: Would you love this case to go to the Supreme Court, or would you fear?

IRA ROBBINS: Well, that’s a really good question. You know, we had a flag-burning case more than 20 years ago. The question was whether flag-burning is protected under the First Amendment as freedom of expression. And the ruling was that it was protected, but only by a vote of five to four. This is a very different Supreme Court. I'm not sure which way this would go. Yes, I'd like to have a ruling, but I'd like to have a ruling that says the right thing, the thing that makes the most sense, and I'm not sure we would get that from the Supreme Court.

BROOKE GLADSTONE: Well, thank you very much.

IRA ROBBINS: Thank you for having me.

BROOKE GLADSTONE: Ira Robbins is a professor of law and justice at American University.