An instance of ‘the finger’ (post)

9 January 2013 by Rosalind English

Schwartz 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)

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