An instance of ‘the finger’ (post)

9 January 2013 by

1245601551255338Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment

Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.

In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports

The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.

Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.

Indeed, Paul J. Browne, the chief spokesman for the New York Police Department, suggested that if its officers “locked up everyone who gave the middle-finger salute, traffic would grind to a halt.”

On the other hand,  the lawyer acting for the police officer in this case pointed out that “This is St. Johnsville, New York, not the Bronx. Not Manhattan. It’s a sleepy little town.”

Nevertheless Schwartz filed a civil rights lawsuit, claiming an illegal traffic stop, false arrest and malicious prosecution.  Although a lower court judge dismissed the case, the prestigious United States Court of Appeals for the Second Circuit in Manhattan reversed that decision on 3 January, ruling that Mr. Swartz’s lawsuit could go forward. NYT writer Benjamin Weiser notes

The appellate decision offers a rich thumbnail sketch of the history and significance of the raised middle finger, one that traces possibly the first recorded use of the gesture in the United States to 1886, “when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”

In a fourteen page ruling, Judge Newman wrote that the act of “giving the finger” dated back centuries. He cited, for example, sources that trace the use of the gesture to ancient Greece, when it was used by Strepsiades to insult Aristotle and by Diogenes to insult Demosthenes.

The ruling also noted the work of Ira P. Robbins, a professor of criminal law at American University who has studied the history of the gesture and is the author of the article “Digitus Impudicus: The Middle Finger and the Law.”

No determination was made on the merits of the plaintiff’s arguments; his case was simply allowed to go ahead. But the court did note that the gesture in question alone could not establish probable cause to believe a disorderly conduct violation has occurred.

The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder…” (People and Tichenor, 89 NY 2d 769,775 (1997)

A full trial of the issue will follow, and we look forward to publishing another instance of a finger post (with apologies to Iain Pears)

Sign up to free human rights updates by email, Facebook, Twitter or RSS

2 comments


  1. Christopher English says:

    Bravo, Rosalind – great heading!

    Date: Wed, 9 Jan 2013 12:55:06 +0000 To: englishcj@hotmail.com

  2. Andrew says:

    Only in America . .

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: