Court Rules Middle Finger Protected by Constitution

the popular hand gesture faced pressure for its constitutional rights

By Jonny Lupsha, Wondrium Staff Writer

An appeals court has ruled that a woman who flashed a police officer her middle finger was exercising free speech, The New York Times reported. Debra L. Cruise-Gulyas received an increased fine for “giving the finger” to an officer after receiving her initial traffic ticket. That decision has been overturned, ruling that the gesture is protected under the First Amendment. Learn more about the American “Free Speech Tradition” and its intricacies.

Middle Finger Protected Speech

Michigan police officer Matthew W. Minard pulled Cruise-Gulyas over in June 2017 for driving over the speed limit, The New York Times article said. He reduced her ticket to a non-moving violation, which is typically less of a driving infraction than a speeding ticket. As she pulled away, Cruise-Gulyas held her hand out to Officer Minard with only the middle finger extended, so he pulled her over again and escalated her initial ticket to the fine for the full speeding violation. She appealed the decision in court and won on the basis that they were two separate stops and that his rights to issue her a ticket ended at the conclusion of the initial stop. America’s “Free Speech Tradition” wasn’t embraced by the Supreme Court until the 20th century; let’s look at why.

The Evolution of Free Speech in the 18th Century

The concept of free speech in the United States is roughly outlined in the First Amendment. It was influenced in part by the 1735 trial of John Peter Zenger, who printed a newspaper in New York City. “When Zenger published articles critical of New York’s colonial governor, the governor ordered Zenger’s magazines to be seized and burned and had Zenger indicted for the crime of ‘seditious libel,'” said Professor Jeffrey Rosen, Professor of Law at The George Washington University Law School. “Seditious libel constituted any criticism of the government, and the truth of the criticism was no defense.” Zenger was eventually acquitted and the notion of truth as a defense was embedded into the Founding Fathers’ ideas.

In a considerable step backwards, questionable international tactics with France under President John Adams led the Federalists to pass the Alien and Sedition Acts of 1798. The Sedition Act outlawed publishing any potentially libelous information about the President of the United States, Congress, or the federal government. It was “a transparent effort by Federalists to insulate themselves from criticism by their opponents,” Professor Rosen said. It was so clearly one-sided, Professor Rosen explained, that it included a sunset provision that would cause the Act to expire on the last day of Adams’s presidency. However, it took almost another 140 years for Congress to specifically acknowledge that free speech that merely advocated political change should be protected under the First Amendment.

The Evolution of Free Speech in the 20th Century

During President Woodrow Wilson’s administration, Congress found itself embroiled in a number of free speech cases involving dissent from World War I. Congress aimed to refine the Espionage Act of 1917 and move away from the vague ideas of restricting speech that may have a bad tendency to government support in favor of only restricting speech that directly encouraged or incited violence and other criminal acts. However, it faced many challenges.

“Justice Oliver Wendell Holmes […] endorsed the bad tendency test in 1907 and embraced it again in unanimous Supreme Court opinions upholding Espionage Act convictions in March 1919,” Professor Rosen said. For example, “Holmes upheld the conviction of Charles Schenck, who had circulated a pamphlet insisting that the draft was unconstitutional.”

Eventually, however, Justice Holmes’s mind was changed, and he was joined by Justice Louis Brandeis in advocating for free speech. In one case, the Supreme Court upheld the conviction of a woman who had attended a meeting of California’s Communist Labor Party. Brandeis concurred with the Supreme Court’s decision but stated that fear of injury was not material enough to warrant the conviction. Brandeis argued that “speech could only be restricted if it threatened harms that were both imminent and serious,” Professor Rosen said. This opinion has become the cornerstone of free speech advocacy in the United States for a century.

By ruling in favor of Cruise-Gulyas’s right to give “the middle finger” to a police officer, the United States Court of Appeals for the Sixth Circuit agreed with Brandeis’s suggestion. She constituted no imminent and serious threat to the officer and thus her right to free speech covered the hand gesture. In turn, his subsequent further punishment of her initial traffic violation was unwarranted. In recent years, several middle-finger-based lawsuits have been settled or are ongoing. They may seem far removed from John Peter Zenger’s newspapers being seized and burned by a New York governor, but the road from 1735 to 2019 can still provide insight into modern court cases.

Professor Jeffrey Rosen, J.D.

Professor Jeffrey Rosen contributed to this article. Professor Rosen is Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. Professor Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School.