Well, duh! Of course flipping the bird is free speech

A federal appeals court has upheld the complaint of Debra Cruise-Gulyas, who sued a police officer Matthew Minard who had issued her a citation after she gave him the middle finger.

In a ruling filed this week, the U.S. Court of Appeals for the 6th Circuit said: “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”

A three-judge panel of the 6th Circuit said her gesture did not violate any identified law. Minard, it said, “clearly lacked authority to stop Cruise-Gulyas a second time.”

“Minard should have known better,” the opinion says.

It pointed to a 2013 ruling by another appeals court that said the “ancient gesture of insult” does not give police “a reasonable suspicion of a traffic violation or impending criminal activity.”

The police officer had argued that he was protected from legal action because of ‘qualified immunity’, the doctrine that the authorities cannot be sued if they are acting in good faith. I have written before about the abuse of this provision that police often use to avoid repercussions for their actions. Courts are taking an increasingly skeptical look at this defense, as they did in this case.

Minard’s attorneys had sought to have Cruise-Gulyas’ lawsuit thrown out, saying “qualified immunity” protected him from liability. The 6th Circuit said that protection doesn’t apply if an officer violates a person’s constitutional rights.

You can read the unanimous Appeals Court opinion here where they say that “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”


  1. sonofrojblake says

    “Any reasonable officer.”

    File “reasonable officer” alongside “honest politician” and “responsible gun owner”. As in, I’m sure there must be some. It would be nice to hear about one every now and then…

  2. says

    This issue of whether or not vulgarity was legally protected speech was decided by Cohen v. California almost 50 years ago.

    The question before this court was whether the officer “knew or should have known” that it was legally protected speech. Why? Because if you search, seize or arrest someone without cause and the victim of that behavior sues, the government pays the damages awarded… unless a “reasonable officer” (an entirely hypothetical creature) would have known that the behavior was constitutionally unjustified and thus unlawful. In that case, the officer must typically pay part of the settlement from the officer’s own person funds. (Conceivably it could even be all the settlement, but this is rarely the case in practice.)

    In essence, what was before the court was not whether gesturing, “Fuck you!” is constitutionally protected speech. What was before the court was whether or not Mano’s “Well, duh!” was justified. Was this an easy and well-established fact? Or was this a recent determination of courts that had not yet had time to disseminate to patrol officers? With 48 years, the answer was obvious.

    Coincidentally, I was once asked what I would do if I were hassled by Oregon police in bad faith and without any genuine suspicion of bad behavior. I semi-seriously (because it would require detailed knowledge of “must identify” laws in the state or province and I hadn’t researched those laws for Oregon) suggested I would give my name as “Cohen V. California”.

    In practice I don’t expect that I would ever do such a thing in my life, but I certainly recognize that some cops do act in bad faith, and giving one’s name as “Cohen V. California” is, in essence, a way to test that (suspected to be bad) faith in certain circumstances. If they laugh, relax: the cop is in on the joke, they have made it their business to be aware of your rights, and they probably do have a good reason for stopping you as inscrutable as it may seem to you. If they take offense and start treating you more severely, then they know the case and are clearly acting in bad faith: how could they constitutionally justify treating you worse after giving that name since knowing the case would require knowing you have a right to offend? Their awareness of the case can become a point of evidence in your favor later. In the third case, where the officer gives no indication that they’re aware of the case you are no better and no worse off than if you had respectfully declined to give your name.

  3. says

    Obscene gestures don’t cause injuries and aren’t even in the same time zone as racist or hate speech. Flipping the bird or other similar gestures absolutely are free speech. In Canada, we call it the “Trudeau salute”, his response to Albertans during a visit in the 1970s.

    Unfortunately, there are other countries where it’s not viewed the same way. The “OK” hand gesture infers homosexuality in certain countries, and internalized homophobia may result in overreactions to it. The hitchhiking thumb is obscene in certain places, and the “got your nose” thumb/hand shape is an obscene gesture in several east Asian countries. Back to the middle finger, several foreigners in Taiwan have gotten into legal trouble, forced to apologize and pay fines for doing it to Taiwanese people. Certian types of insults are chargeable offences, verbal or gestures. (Sorry, no links handy to verify it.)

    How high strung can some people be? I once shook my head at a clown speeding in a mercedes and nearly hit people. No raised fist, no yelling, no obscene gestures, just shaking my head as if to say, “you’ve got to be kidding”, and he stopped, got out, and got in my face about it. (“The price of the car determines right of way” is a very common attitude here.)

    I only post now because this post (writen while I was away) came up in a search.

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