There are a number of ways in which individuals express their anger in frustrating situations. Ever get cut off in the middle of heavy traffic? Some of you might slam on the horn and scream obscenities at the asshole who committed the offense. There are days when your annoyance may be with a stranger from afar, someone you know and love, or even your local law enforcement officer. So, what do all of these things have in common?
Well, it is now within your legal right to express your varied sentiments using your middle finger, if you so chose, without fear of being arrested for disorderly conduct.
Rejoice!
What prompted this decision by the The U.S. Court of Appeals for the 2nd Circuit was a 2024 incident involving New York resident John Swartz. Mr. Swartz is from a small town in upstate New York named St. Johnsville - a peaceful town with less than 3,000 folks. On a random day in May of 2024, Mr. Swartz was a passenger in a vehicle that drove along an intersection where a police car and a couple of cops were parked. Not such a big deal, right? Well, like we so often see, most times after it’s too late, the officers at this particular intersection were there with a radar device that is used to catch drivers who are speeding. Mr. Swartz wasn’t terribly pleased to see this sight and chose to express his disapproval with a simple gesture of the flipping of the bird. And that one finger salute resulted in Mr. Swartz ultimately being arrested on a charge of disorderly conduct.
What followed his arrest was a civil rights lawsuit filed by Mr. Swartz and his wife Judy Mayton-Swartz against the arresting officers. And several years later, in July of 2024 to be exact, a federal judge in the Northern District of New York dismissed the case. However, as seen yesterday, The U.S. Court of Appeals for the 2nd Circuit reversed the initial decision paving the way for Mr. Swartz’s case to continue.
One of the most interesting aspects of The U.S. Court of Appeals for the 2nd Circuit decision was in the 14-page document that stated that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” So, although Mr. Swartz still has a lengthy battle ahead of him, the federal courts are giving us some great insight into this debate and plenty of information to gain new perspectives.
The gesture of the middle finger is one that exists in various forms throughout the world. It’s a simple, but effective way to get one’s point across even from a distance. Its use and presence in modern society has been around for decades and probably won’t be going anywhere any time soon. And while its intent might sometimes be jovial and other times a means to instigate further dialogue, it is now safe, at least from a legal standpoint, for you to let that finger do the talking.
Side Note: If you are interested in reading further on the topic of the middle finger and the law, check out this piece written by Ira P. Robbins, a professor of criminal law at American University. His article “Digitus Impudicus: The Middle Finger and the Law” was linked in a recent New York Times article on the Swartz case.
