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Is Flipping the Bird Disorderly Conduct or Protected Speech?

by | Oct 19, 2017 | First Amendment, Media Law

In August of 2014, pastor John Berry asked teachers attending his service to stand and be recognized, and he requested that the congregation pray for their success in the upcoming school year.

One church member, homeschooling father David Justin Freeman, did not appreciate the request.

According to court testimony, Freeman flipped the bird at the pastor and shouted, “Don’t send your kids to the evil public schools. Don’t let Satan or the devil raise your kids.”

Pastor Berry called the authorities, and Freeman was charged with disorderly conduct. He was later convicted, receiving one year of probation and a $270 fine.

But did his actions really constitute a crime punishable by the government?

After months of appeals, the Georgia Supreme Court determined there was no crime and unanimously overturned his conviction.

So the question is, can a person flip the bird anytime he wants without being arrested?  The answer—it depends.

In this case, yes. According to Justice Harold Melton, “There was no showing here that Freeman’s act of silently raising his middle finger from the back of the church during the church service constituted ‘fighting words’ or a ‘true threat’ that would amount to a tumultuous act.”

The court ruling further explained that flipping the bird is protected by the First Amendment.

“We recognize that the raising of the middle finger as a form of insult has a long, if not illustrious, history dating back to ancient Greece. Like its verbal counterpart, when it is used to express contempt, anger, or protest, it is a form of expression protected by the First Amendment.”

But let’s say, he flipped the bird at the judge during a court hearing. That would likely be contempt of court.

So, can you be legally arrested for flipping the bird? It depends on the setting, but flipping the bird by itself is usually an act of expressive conduct protected under the First Amendment. Perhaps the most famous case of this type involved a man in a courthouse hallway with a jacket during the Vietnam era and the jacket had words that said “F___ the draft.” The U.S. Supreme Court said that was protected speech.

If you find yourself in a situation where you believe you are facing wrongful charges for exercising your right to free speech, please give us a call. We can help.


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