Flipping 'the Bird' Is Protected Speech
A Pittsburgh motorist was exercising his constitutional right of free speech when he gave the finger to a police officer and another driver during an argument over a parking space. U.S. District Judge David S. Cercone ruled this week that David Hackbart's display of his middle finger was a non-verbal gesture protected by the First Amendment, according to a report in the Pittsburgh Tribune-Review.
"Hackbart, in this instance, was expressing his frustration and anger when he gestured with his middle finger to both the driver behind him and to [the officer]," Cercone wrote. "Both gestures are protected expressions under the First Amendment, unless they fall within a narrowly limited category of unprotected speech such as obscene speech or fighting words."
The 34-year-old was attempting to parallel park when another driver pulled behind him and blocked the space. As Hackbart raised his middle finger at the other driver, he heard someone say, "Don't flip him off," so he turned and made the same gesture in the direction of the voice. Turned out the voice was that of Pittsburgh Police Officer Brian Elledge, who promptly cited Hackbart for disorderly conduct.
A state judge later ruled Hackbart guilty and fined him $119.75. When Hackbart appealed, the district attorney withdrew the charges against him. That might have been the end of the story, except that Hackbart -- with the help of the ACLU -- then sued the police officer and the city for violation of his civil rights. The incident, he claimed in his lawsuit, caused him "physical pain and suffering, emotional trauma, humiliation and distress."
Judge Cercone's ruling allows Hackbart's lawsuit to proceed against the officer but not against the city. "The traffic stop was in retaliation for Hackbart's hand gesture toward Elledge," the judge reasoned. "Elledge admitted, however, that the hand gesture was neither illegal nor obscene."
Posted by Robert J. Ambrogi on March 25, 2009 at 02:04 PM | Permalink
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