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Is flipping the bird against the law?

As Professor Rachel Harmon explains, the Supreme Court has long recognized that protected speech may include symbolic and expressive conduct — like flipping the bird — when the speaker intends to convey a message or idea.

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Profanity and Free Speech

Under the First Amendment profanity or curse words cannot be blanketly restricted. As the Supreme Court reasoned in the case Cohen v. California (1971), while certain words may be distasteful to some, they may resonate with others, and it is not the role of the government to make such determinations. Justice Harlan opined, according to such logic, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

The Spence Test and Expressive Conduct

Professor Harmon also explains that protected free speech is not limited to spoken words, expressive conduct is also protected. The Supreme Court states this principle in the landmark case of Spence v. Washington (1974). In that case, an arrest for displaying a United States flag upside down and with a peace symbol attached to it was seen as expressive of opposition to the Vietnam War. As the opinion reasoned, conduct is protected under the First Amendment where “an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Thus the Spence Test was born to identify protected expressive conduct.

The Spence Test and the Middle Finger?

To apply the Spence Test to a use of the middle finger, we must ask two questions: (1) is there an intent to communicate a message, and (2) is that message likely to be understood. Given that this particular gesture can mean different things at different times, this may seem to present a problem. For example, one use of the finger can convey contempt while in other, it may signal a humorous and friendly emphasis to provoke a laugh. In each of those cases, intent to convey a message is present, and the only remaining question is whether that message is likely to be understood. With context, a display of the middle finger to a police officer would pass the Spence Test as both intent and understanding by the viewer are present.

A Recent Case

Just because it may be constitutional doesn’t mean that you cannot be arrested. In fact, instances of arrest for showing the middle finger to police arise, but are not legal. A recent case was reviewed by the Sixth Circuit Court of Appeals in 2019. In Debra Lee Cruise-Gulyas v Matthew Wayne Minard, Circuit Judge Sutton writes in the opinion, “Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.” In that case, Cruise-Gulyas sued for violation of her constitutional rights, and the Circuit Court took her side against the police officer involved.

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Is 11:11 Good luck?

Numerologists speculate that November 11th is the luckiest day of the year because it's doubling the “master number” of 11. If you're into numerology, that means the day is full of potential for wish-granting — especially when the clock shows 11:11.

today.yougov.com - Who makes a wish at 11:11? | YouGov

When the clock strikes 11:11 on Wednesday (11/11), will you make a wish?

Numerologists speculate that November 11th is the luckiest day of the year because it’s doubling the “master number” of 11. If you’re into numerology, that means the day is full of potential for wish-granting — especially when the clock shows 11:11. Otherwise, it can just be a fun game or reminder to manifest your own desires. Data from YouGov indicates that young women are especially likely to follow the tradition of making a wish at 11:11. About two in five women who are 18-to 24-years-old (43%) and 25-to 34-years-old (38%) do this. The percentage of women who hope for wishes to be granted at 11:11 decreases with age — about a quarter (28%) of 35-to 44-year-old women do this, compared to 17% of 45-to 54-year-olds and even fewer (6%) who are older than 55. Just a quarter of men who are 18-to 24-years-old (24%) and 25-to 34-years-old (23%) make a wish at 11:11. Americans who make a wish when the clock shows 11:11 are more likely than the average American to believe in karma (50% vs 40%), magic (21% vs 11%), spiritual energy (50% vs 42%), as well as fate or destiny (36% vs 29%).

Related: About half of Americans believe ghosts and demons exist

Methodology: Total weighted sample size was 18,240 US Adults aged 18+. Participants were asked, “When you see the clock says it's 11:11, do you make a wish?” Response options were: Yes, No, or Don’t know.” There were 10,074 women interviewed and 8,166 men interviewed. The survey was conducted November 11, 2019. The responding sample is weighted to provide a representative sample of the United States.

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