Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. I’m your host, Adam Freedman.
But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Today’s episode: Flipping the bird – free speech or not?
Tim has sent me an urgent email from … actually, Tim won’t tell me where he’s from, but here’s what he says:
“I was thinking of selling some T-shirts to express our feelings on a ruling by a certain city council. It’s all in fun but I sure don't wan’t to be sued!! Can you give me an idea of what I might expect?”
Attached to the email is a picture of the T-shirt in question – it says, “Hey, Exampletown City Council,” and below that, has a picture of a fist with the middle finger extended upward.
Now, I’m assuming that Exampletown is a pseudonym – like Anytown, USA – meant to protect Tim’s identity. But if it’s a real place can you let me know where that is? Is it close to Sampleville or maybe Paradigm City?
Tim, the quick answer is that messages on T-shirts are entitled to First Amendment protections. That means people generally cannot be arrested simply for wearing your T-shirts in public, unless the circumstances suggest that the shirt’s message constitutes “obscenity” or a provocation to violence.
The First Amendment to the Constitution states that “Congress shall make no law … abridging the freedom of speech.” This noble phrase raises the question of what constitutes “speech?”
Speech Need Not be Spoken
Over the years, courts have interpreted the word “speech” in the Constitution very broadly indeed. Speech encompasses not only spoken and written words, but also non-verbal behavior. The Supreme Court has even held that dancing is “speech” within the meaning of the First Amendment (intended, in the words of the Court, to convey a message of “eroticism”). But there are limits – courts have rejected arguments that smoking cigarettes, riding motorcycles, and wearing baggy trousers are protected by the First Amendment. And yes, all of those arguments were seriously made in federal court.
Extra Protection for “Political Speech”
The good news for Tim is that “political speech” usually gets a heightened level of protection under the First Amendment. In New York Times v Sullivan, the Supreme Court observed that protection of political speech – and in particular, the ability to criticize public officials – is at the core of the First Amendment. And political speech clearly includes non-verbal gestures. In the landmark case of Tinker v. Des Moines, the Supreme Court held that students had a First Amendment right to wear black armbands to protest the Vietnam War.
And so, assuming that Tim’s shirts reflect a genuine political message to the powers-that-be in, er, Exampletown, they would clearly be protected by the First Amendment. The major exceptions to this protection are obscenity and a doctrine known as “fighting words.”
The Obscenity Exception
The government does have greater latitude to suppress “obscene” speech, but what’s “obscene.” Personally, I can’t define it, but I know it when I see it. Under current Supreme Court precedent, the word “obscene” refers to material that appeals to the prurient interest, depicts or describes sexual conduct in a way that is patently offensive, and lacks serious literary, artistic, or scientific value.
Political speech is usually not considered obscene. In Cohen v. California, another Vietnam era case, a young man named Paul Cohen was arrested for wearing inside a courthouse a jacket on which he had written “F- the draft” (except that he spelled out the entire F-word). In overturning Cohen’s conviction, the Supreme Court stated that “It cannot plausibly be maintained” that the words on his jacket convey any erotic message that would meet the definition of “obscenity.”
Them’s Fightin’ Words
Under the doctrine of “fighting words” a person may be arrested for a “breach of the peace” if his or her words are spoken directly to a person and
are likely to provoke violent retaliation. Whether the one-fingered salute can constitute “fighting words” has been the subject of various court cases. Unfortunately, the results haven’t been consistent. In 2000, a federal court in Arkansas held that flipping the bird to a police officer was protected speech and did not constitute “fighting words.”
However, on January 13, 2009, a federal court in Maine held that the First Amendment did not
protect a man who was arrested for “disorderly conduct” for making the same gesture toward two game wardens.
Neither of these cases, however, involved a mere picture of an extended middle finger. Whether Tim’s T-shirts are sufficiently inflammatory to drive men to violence would depend upon the situation on the mean streets of Exampletown.
School for Scandal
The State may be able to impose limitations on expression in certain other limited contexts. Under the Tinker v. Des Moines case I mentioned a minute ago, school officials could prohibit, say, the wearing of a provocative T-shirt if they have reasonable grounds to believe that the shirt would “substantially and materially disrupt the educational process.”
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 Miller v. California, 413 US 15 (1973).
 Nichols v. Chacon (W.D. Ark. 2000)
 Dube v. Boyer, Civil No. 8-165-B-K (D. ME. January 13, 2009)