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Massachusetts Supreme Judicial Court gives thumbs up to the middle finger, sometimes

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The Judicial Update

January 31, 2012

Massachusetts: The Massachusetts Supreme Judicial Court ruled today that the use of the middle finger as an insult was protected speech under the First Amendment, but that it could constitute a physical threat under certain circumstances. The case was sparked after a Northhampton police officer (Sgt. Alan Borowski) obtained a civil restraining order under an anti-harassment law against a Northhampton man (Robert O'Brien) who gave the off-duty officer the finger three separate times in 2010. O'Brien appealed the order on the grounds it was unconstitutional because it violated his First Amendment right to free speech. The high court dismissed the restraining order because it had expired and was moot at the time of the case - leaving the specific constitutional question unanswered. The court did rule that the anti-harassment law, under which the order was issued, was constitutional - but said it did not have enough information from the lower court to judge whether or not the law was properly applied in Borowski's and O'Brien's case.[1]

To the question of the middle finger the court noted in its ruling that “We recognize that the raising of the middle finger as a form of insult has a long, if not illustrious, history dating back to ancient Greece. Like its verbal counterpart, when it is used to express contempt, anger, or protest, it is a form of expression protected by the First Amendment...But, in certain limited circumstances, when accompanied by other less expressive and more threatening conduct, raising the middle finger may constitute fighting words or a true threat."[1]

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