Can you give the middle finger to the police in Texas? Here’s what the law says

Go ahead Texas, give the police the one-finger salute. As long as the gesture does not include threats and “fighting words,” you are covered by free speech protections.

“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,” according to Rachel Harmon, University of Virginia School of Law professor. “Even when the target of the expressive conduct is a police officer, this protection still stands.”

In Texas, flipping another person the bird is in most cases lawful until it crosses the line into disorderly conduct. That line is defined as when an individual intentionally or knowingly, “Uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace,” according to the Beltz Law Group of Garland.

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How a Michigan driver got away with flipping a police officer the bird

A 2019 case law out of Michigan, Cruise-Gulyas v. Minard, establishes that flipping the police the bird may be rude but it is not illegal.

“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,” writes Chief Judge Jeffrey S. Sutton of the U.S. Court of Appeals, Sixth Circuit in his ruling on the Michigan case.

So, what kicked off this legal kerfuffle?

In June 2017, Kevin Minard of the Taylor, Michigan, police stopped Debra Cruise-Gulyas for speeding. He showed Cruise-Gulyas a modicum of mercy and wrote her a lesser ticket.

Unswayed by the police officer’s act of kindness, she flipped off Minard as she drove away. The police officer gave chase and wrote her the full ticket.

She sued and won. He appealed to the U.S. Court of Appeals in the Sixth Circuit in 2019 and lost. Again.

For Cruise-Gulyas to win, she had to show that she engaged in protected conduct, that Minard took adverse action against her and that her protected act partly motivated the police officer to retaliate.

“The second stop could not be justified by the earlier speeding because any authority to seize her for that offense ended with the first traffic stop,” according to the Columbia Freedom of Expression at Columbia University. “The Court concluded the second traffic stop was motivated by Cruise-Gulyas’ protected conduct.”

How did the middle finger become such a profane gesture?

The origin of the salute of the middle finger have inspired competing historical references.

One version says it was first used by Diogenes Laertius, a biographer of Greek philosophers, as an insult to a contemporary. In this telling, when Diogenes heard that statesman and orator Demosthenes was speaking, he lifted a middle finger and said, “There goes the demagogue of Athens!”

In another telling, historians claim the Romans used the gesture as a proxy for Priapus, a minor Greek god associated with fertility and the male reproductive organs.

“The most familiar example of the coexistence of a human and transhuman element is the extended middle finger,.” writes Anthony Corbeill, Professor of Classics at the University of Kansas. “Originally representing the erect phallus, the gesture conveys simultaneously a sexual threat to the person to whom it is directed and apotropaic means of warding off unwanted elements of the more-than-human.”

A more tongue-in-cheek, and now debunked, version making its way around social media channels is an image of English soldiers lifting a finger in defiance of their opposition in the Battle of Agincourt, France in 1415. The tale goes like this: The French would chop off the middle finger of captured English soldiers to end their ability to draw their longbows in future battles. The English’s one-finger salute was supposedly a show of defiance, so the myth goes.