The finger is not obscene.
Every so often, a case pops up where some prosecutor decides to press charges on someone for giving the bird. The most recent one, overturned on appeal, was in Commonwealth v. Waugaman. Mr. Waugaman flipped off his ex wife after dropping off his kids to her. From the facts, it also sounds like he was being sort of a douche aside from that. But, the charge was (in part) “disorderly conduct” based on “obscene language or gesture.” (Op. at 2). He was found guilty of that charge, and sentence to 90 days probation and costs.
In order for something to be “obscene” it must meet the Miller test. The court must ask:
1) whether the average person applying contemporary community standards would find that the work as a whole appeals to the prurient interest;
2) whether the work depicts or describes, in a patently offensive way, sexual conduct defined by applicable state law; and
3) whether the work lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 16-17 (1973).
So lets do an exercise. Read the following passage:
My sweet little whorish Nora I did as you told me, you dirty little girl, and pulled myself off twice when I read your letter. I am delighted to see that you do like being fucked arseways. Yes, now I can remember that night when I fucked you for so long backwards. It was the dirtiest fucking I ever gave you, darling. My prick was stuck in you for hours, fucking in and out under your upturned rump. Letter from James Joyce to Nora Barnacle (1909)
Does it appeal to the “prurient interest?” Well, what the fuck does that mean? Pretty much it means that it has to turn you on. Do you have a chubbie or a snail trail from that? I mean, I guess someone could sploosh over it, but then again, there are people who are sexually aroused by balloons and sports mascots. But, in my “contemporary community” if you tossed that in a fortune cookie on a date, chances are pretty low that you’d be getting laid that night. Well, unless your date was a huge Joyce fan. Which is sort of hot in itself, I guess. But, to focus here — I don’t think so. But, lets pretend it does.
Does it depict sexual conduct? Sure. How about in a “patently offensive way”? Depends on who you ask, no? Is that patently offensive? Looks to me a lot less offensive than an average conference call with yours truly, but I’m not exactly the norm, I suppose.
Does it have serious literary, artistic, political, or scientific value? Well, it turned out to be necessary to my academic study of James Joyce’s Ulysses in the context of a law review article. See Ulysses: A Mighty Hero in the Fight for Freedom of Expression, 11 U. MASS L. REV. 268, 295-296 (2016).
So, I’d say “fuck no, its not fucking obscene you chucklefuck.” But, I can’t even see how the written word could ever be called legally obscene. (1)
So, what about the middle finger? Obscene gesture? The prosecutor in the Waugaman case said that it was obscene, because the guy’s children saw it, and they “may well have seen their father’s conduct in relation to their mother as explicitly sexual in nature.” (Op. at 3).
But really, does it “appeal” to the prurient interest? On that first element, the Pennsylvania court called bullshit. It cited to, believe it or not, another case dealing with this same chickenshit type charge. Brockway v. Shepherd, 942 F. Supp. 1012, 1016-17 (M.D. Pa. 1996) (“using a base term for sex does not change the disrespectful, inoffensive communication into one that appeals to the prurient interest. It would be a rare person who would be ‘turned on’ by the display of a middle finger or the language it represents…”).
Don’t get me wrong, Waugaman is a dick. You don’t flip off the mother of your kids, swerve toward her in the parking lot, and then peel out of the parking lot, unless you’re a huge bag of douche. But, a criminal conviction for flipping someone off? Both the prosecutor and the trial judge just might need some therapy if they were willing to press this and permit a conviction.
Marc Randazza is the national president of the First Amendment Lawyers Association
(1) The only “written word” obscenity case that I am aware of since the 1930s is a 2008 case from the Western District of Pennsylvania. In 2008 Karen Fletcher was prosecuted and later plead guilty to six counts of distributing obscene materials online. Fletcher had posted fictional stories on her website containing graphic descriptions of torture and molestation of children. United States v. Fletcher, No. CR 06-329 (D. Penn. 2008). Despite the fact that U.S. courts usually refrain from finding obscenity in text-only cases, Fletcher’s case was a prime opportunity for “obscenity” opponents to obtain a conviction based on text alone. Fletcher’s agoraphobia was a driving force behind her pleading guilty in lieu of trial. See Paula Reed Ward, Afraid of Public Trial, Author to Plead Guilty in Online Obscenity Case, PITTSBURGH POST-GAZETTE, (May 17, 2008). She ultimately got sentenced to house arrest, which is a pretty cool sentence for an agoraphobic person.
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