A recent artice, Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008), tells you pretty much all you would want to know.
A recent artice, Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008), tells you pretty much all you would want to know.
Mike McDougal says:
Don’t forget to review its 2006 cousin “F*ck.”
March 4, 2010, 1:12 pmGordo says:
This subject recently got some press in Clackamas County, Oregon
March 4, 2010, 1:20 pmChris Newman says:
So, is the “pluck yew” yarn real or apocryphal? Does it say?
March 4, 2010, 1:53 pmgasman says:
Other than hizoner being his own little fiefdom, having a one’s ability to speak freely on one’s own behalf is essential. It was noted earlier in the article that police necessarily would have to have a thicker skin than mere ordinary citizens and must not abuse their power to punish people who give them the bird. Likewise should it be with judges, who have a similar public service role, enormous power over individual defendants, and an even better understanding of the personal liberties granted us through the Constitution.
March 4, 2010, 2:03 pmIf a judge cannot take a little ribbing from the defendant without lashing out or unfairly applying the law, then he needs to be off the bench.
This is entirely separate from the issue of whether a wise defendant would deliberately provoke a man who holds your balls in a vice.
Justin says:
Serious question – do articles as…..lighthearted as this make it into the journals of other academies?
March 4, 2010, 2:16 pmMike McDougal says:
Does the Sokal hoax count?
March 4, 2010, 2:28 pmProfane says:
Hmmm. . .so:
Contempt of Citizen: Legal
March 4, 2010, 2:41 pmContempt of Cop: Legal
Contempt of Court: Illegal
frankcross says:
The Latin in the title legitimates the article as serious
March 4, 2010, 3:01 pmyankee says:
I tried to add some appropriate ascii art but the page won’t display the whitespace and the pre tag doesn’t work :-(
March 4, 2010, 3:11 pmJohn Burgess says:
Chris Newman: bogus. The gesture goes back 2,500 years, at least. That’s covered in the article as well as other authoritative pieces.
Profane: As the article points out, not all states agree that cops should have thicker skin. Your line, therefore, would move up one. Florida, alas, is one state that seems to believe that its cops should be sheltered from foul language.
March 4, 2010, 3:46 pmohiolawdog says:
It’s just that bird law in this country—it’s not governed by reason.
Now what say he and I go toe-to-toe on bird-law and see how comes out the victor?
March 4, 2010, 3:54 pmJohn Herbison says:
“Contempt of cop”: legal in theory; don’t try it in the real world, though, unless you can afford the bail bond, aa criminal defense lawyer, and a good amount of inconvenience.
March 4, 2010, 4:09 pmAmerican Psikhushka says:
Of course presenting “the bird” to a cop that didn’t identify themself and was illegally and tortiously acting as a harassing peeping tom would tend to skew the justification well into the citizen’s favor. Don’t illegitimately violate someone’s privacy or harass them and you won’t have to worry about being flipped off. Cop or not.
March 4, 2010, 4:34 pmbbbeard says:
So, if I impudently digitize a policeman but he can’t see it, is it still a crime?
March 4, 2010, 4:53 pmAnonsters says:
Who knew the bird was an expression of excitement at finding a perfect pair of shoes?
March 4, 2010, 5:03 pmRobbins says:
Despite the title of my article — “Digitus Impudicus: The Middle Finger and the Law” — the article is a serious one. One has to read just a few paragraphs from any portion of the article to confirm this….
As for gasman’s quote regarding contempt of hizoner and contempt of cop, consider this anecdote in footnote 34 of the article:
A former police chief related the following story:
E-mail from Harry W. Stege, Chief of Police (Retired), City of Tulsa, Oklahoma, to Ira P. Robbins, Professor of Law, American University, Wahington College of Law (Feb. 5, 2008, 18:06:18 EST) (on file with author).
March 4, 2010, 5:06 pmOrenWithAnE says:
The question is not ribbing it’s the manner of expressing that ribbing.
March 4, 2010, 5:24 pmSmithCommaJohn says:
Nice.
March 4, 2010, 5:29 pmFrank G says:
Prof. Robbins, I still remember the day in Criminal Law when the topic was obscenity laws and you flipped us off. It’s one of my favorite stories to tell about law school. Congrats on the article!
March 4, 2010, 5:40 pmCDR D says:
I have to wonder how they would respond to ‘timely’ flatulence.
Accidental? … or expression of contempt?
March 4, 2010, 5:48 pmJohnKT says:
OMG! Scalia, wasn’t it, flipped somebody (don’t recall who anymore) the Italian bird, with the obligatory “Va fangool!”
That is dialect for “va fare in culo” and the whole forearm is used in the gesture to tell the person how deep it should be.
I guess if it is the Italian bird, since we don’t normally speak Italian, it is not an offense?
March 4, 2010, 6:29 pmlicrimlawyer says:
“Wise defendant”? Now, there is an oxymoron.
March 4, 2010, 6:31 pmMike McDougal says:
Civil battery?
March 4, 2010, 6:36 pmRobbins says:
- Frank: What I remember about that occasion was that I had terrible misgivings later on. But if that was one of the highlights of law school, who am I to rethink it?
- JohnKT: It concerns me that Justice Scalia does that and people get a kick out of it. Senator Bunning flips the bird and the media see it as an expression of his anger toward a journalist. But a mere mortal does the same thing (albeit toward a police officer) and gets harassed and/or arrested.
March 4, 2010, 6:53 pmSuperSkeptic says:
I love this Robbins guy!
What else have you written, Sir? I am sure I will delight in all of it if it is all this pro-First Amendment.
March 4, 2010, 7:03 pmRobbins says:
SuperSkeptic – here’s my page: http://www.wcl.american.edu/faculty/robbins/
Most of my other stuff (not all, I hope) is exceedingly dense.
March 4, 2010, 7:21 pmRobbins says:
bbbeard: wouldn’t that be the crime of attempted impudent digitization?
March 4, 2010, 7:56 pmPlugInMonster says:
Having the police harass us now and then is the price we pay to have THEM interact with violent criminals instead of us. It’s not a perfect world, and never will be.
March 5, 2010, 3:42 amAmerican Psikhushka says:
bbbeard-
So, if I impudently digitize a policeman but he can’t see it, is it still a crime?
In the example I gave the “impudence” is with the individual doing the peeping tom act. Is it “impudent” to flip off someone illegally and tortiously violating your privacy? If they weren’t violating your privacy they wouldn’t see your naughty finger.
March 5, 2010, 3:51 amAmerican Psikhushka says:
PlugInMonster-
Having the police harass us now and then is the price we pay to have THEM interact with violent criminals instead of us. It’s not a perfect world, and never will be.
Several problems with this. First, the laws and rules are there to prevent police from harassing the public, which is tortious and illegal. If you can’t follow the laws and rules don’t become a cop – there are plenty of other qualified applicants.
Second, the self-defense laws provide significant ways of defending ourselves from violent criminals provided we aren’t being made helpless in some way.(Although they could use some improvement, it is much easier for a person to defend themselves in some places than in others.) Beware of people that want to make you dependent on them to “protect” you. There’s a famous quote (Can’t find the author right now – anyone?) that goes something like this: “Those who can do everything for you can do anything to you.”
Also note that the Supreme Court has ruled that the police are not obligated to protect any individual in a particular situation. So this protection can be withdrawn at any time. Your safety ultimately depends on you, whether you realize it or not.
March 5, 2010, 4:11 amDavid Watson says:
This issue has received quite a bit of attention in South Africa where the President’s cavalcade was allegedly zapped by a jogger. The jogger was arrested under the common law crimen injuria. There has been a massive public backlash against it not the least of which was the dubious legal grounds upon which the jogger was arrested. For some pointers on the South African law you can see here or here.
Oh, for those unfamiliar with South African politics – it is highly unusual for our police to arrest citizens for criticizing the president.
March 5, 2010, 7:19 ammikeyes says:
Years ago, when Monday Night Football was worth watching, Dallas had just lost a close home game in their new stadium. One sad Dallas fan was just sitting there all by himself stunned at the loss when the camera zoomed in on him. Once he realized he was on national TV, he flippd off 30 million people.
Don Merideth immediately replied, “We’re Number One!”
I don’t think that the FCC bothered to do anything about it (other than laugh.)
March 5, 2010, 7:53 amTips For Selecting The Best Binocular Harness System says:
[...] The Volokh Conspiracy » Blog Archive » The Law of Flipping the Bird [...]
March 5, 2010, 8:26 amCDR D says:
mikeyes -
I saw that game and the incident. It was way back in the ’70s. I believe the team of which you speak was the Houston Oilers.
March 5, 2010, 10:55 amSparky says:
83 pages on the subject, no less!
March 5, 2010, 11:33 amBrian G. says:
And many people here wonder why law reviews are most of the way down the toilet. How about publishing more articles that can be used in normal everyday practice and less nonsense like this will be read by absolutely no one?
March 5, 2010, 1:24 pmRobbins says:
Counterarguments to Bryan G:
1) Have you actually read the article?
2) Why don’t you think it would be of use to those in the unfortunate situation of being arrested/prosecuted/convicted for giving the finger — i.e., having the police violate their First Amendment rights?
3) What other law-reform issues do you think are nonsense?
March 5, 2010, 1:32 pmBT says:
Mikeye, I remember this incident as well but my recollection is different than yours. It was Monday Night Football in the early to mid 1970s and it was the Oakland Raiders vs Houston Oilers. The Raiders were crushing the Oilers and there were whole sections at the Astrodome that were vacant. Anyway, a lone fan with a section all to himself is now on camera and to a greatful nation and he extends his middle finger. Howard Cosell, without missing a beat, says my sentiments exactly. As we have differing memories I wonder what the truth is.
March 6, 2010, 8:56 amRobbins says:
Re: Raiders/Oilers game … here’s the clip:
http://www.youtube.com/watch?v=QOyhKkAKOFk
(don’t know who said what after the end of this clip)
And for no additional charge, George W. Bush’s “one-finger victory salute”:
http://www.youtube.com/watch?v=SeJmmQ5y9eQ&NR=1
March 6, 2010, 9:47 ammarkm says:
From where comes the notion that not allowing cops to arrest someone for flipping the bird means the cop has to have thicker skin than the ordinary citizen? We’re just requiring him to have as thick a skin as everyone else. If someone flips the bird at me, that is not a legal excuse for me to physically attack him or threaten him. And if I threatened him with a gun, wrestled him down, handcuffed him, and put him in a cage overnight, I’d be guilty of kidnapping and a host of other crimes. Why should someone licensed to use violence on our behalf be expected to be more sensitive and less self-disciplined than any other person on the street?
In fact, the whole “fighting words” concept should be obsolete. Before the Civil War, men often did fight over insults. Even then duels and less formal fights were generally prohibited by state legislatures, but such laws were often overriden by prosecutorial discretion, jury nullification, and socially-tolerated loopholes. (For example, duelists might meet someplace of indeterminate jurisdiction, e.g. a sandbar in the middle of the Mississippi River.) But in my lifetime, and I was born in 1953, it has never been justifiable for anyone past pre-school age to react to a mere insult with violence. There is no such thing as a fighting word now.
March 7, 2010, 2:00 pmmarkm says:
There are better justifications for restrictions on insults in courts and schools. These are places where you expect to find people who aren’t as well socialized as most, and they are places that must maintain at least a surface calm to be effective. A judge should be adult enough to ignore the bird flipped at him, but a judge must stop the defendant from flipping the bird at the prosecution witness, or vice-versa, or else there’s a substantial risk of the court proceedings turning into a screaming match, if not a fistfight.
And it’s not like the impudent digit communicates anything relevant to the proceedings.
March 7, 2010, 2:24 pmVanessa says:
judges shouldn’t be biased. they should hear first both sides of the story. and i do believe that they have their own rules.
March 10, 2010, 11:02 am