'Finger' gesture hands high court a key case

Marshall H. Tanick, BridgeTower Media Newswires

“A gesture is an idea.”
— Poet Wallace Stevens, So-and-So Reclining On Her Couch (1947)

As this extraordinarily unusual school year draws to a close, a nearly universally recognized gesture has handed the U.S. Supreme Court an opportunity to expand — or restrict — the rights of students and perhaps employees engaged in commentary on social media.

The justices late last month heard a case initiated four years by a ninth-grade girl at a public school in Pennsylvania who was sanctioned for out-of-school remarks on the internet, including a well-known middle finger gesture, known variously as “flipping (or flicking) the bird,” or in more common parlance, “giving the finger.” The case reached the Supreme Court on certiorari early this year, a couple of weeks after the 8th U.S. Circuit Court of Appeals handed a victory to a Twin Cities man, a Minnesota case that also focused around the middle finger gesture.

Those cases shape the legal landscape ranging broadly from education law to First Amendment rights to off-duty employment conduct by employees here in Minnesota and elsewhere.

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Minnesota matter

The Minnesota matter, Garcia v. City of New Hope, 984 F.3d 655 (8th Cir. 2021), arose out of an encounter between a Hopkins man driving a vehicle past an elementary school in New Hope, where he was stopped by a municipal patrol officer who indicated to him she thought he was driving too fast. It ended with the driver flashing his middle finger as he returned to the scene and drove past the cop.

The incident generated a criminal charge against the driver for disorderly conduct and illegally obstructing one of his car’s license plates. The criminal charges were ultimately dismissed by the Hennepin County District Court when the driver agreed to complete a driver training course and write a letter of apology to the city.

After complying with those conditions, the driver sued in U.S. District Court for violation of his First Amendment right of freedom of expression and Fourth Amendment right against improper arrest. Although his case was dismissed by U.S. District Court Judge Nancy Brasel on grounds that the officer had qualified immunity, the 8th Circuit reversed on both claims, holding that, while rude and offensive, the driver’s gesture was an exercise of “constitutionally protected speech” and, therefore, not subject to retaliatory criminal charges.

That decision was consistent with a number of other rulings around the country. Although not uniform, they generally have upheld the middle finger gesture as constitutionally expression under the First Amendment.

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Gesture generations

Although relatively new to the judicial forum, the gesture has a long lineage, dating back dozens of generations. Indeed, references to it can be found in ancient Greek and Roman literature and extending through Shakespearean times, when the source for the term “flipping” or “flicking” the bird arise.

The phrase supposedly derived from the practice of Elizabethan era English audiences disapproving by booing or hissing performances that they disliked. A tough crowd, their noises sounding like a goose predicated the term “giving the bird.” See I. Robbins, “Digitus Impudicus: The Middle Finger and the Law.” U. Cal. Davis L. Rev. 41 Law Rev. 1403 (April 2008).

The gesture was viewed with disproval in the Middle Ages, through the Catholic Church, which disliked its sexual connotation, as a reference to fornication. But it resurfaced in the late 19th century and has been going strong since then, gaining its prominence as a variant of the phrase “F--- You,” and its “flipping” nomenclature sometime in the 1960s.

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Supreme suit

It now made its inaugural appearance before the Supreme Court, which reviewed the ruling of the 3rd Circuit upholding the earlier this year to take up the case the freshman cheerleading aspirant, Brandi Levi who, after failing to make the varsity cheer squad for the school’s Golden Bears athletic teams, expressed her frustration on social media by sending a message on a Saturday while at a convenience on Snapshot to about 250 friends.

Her posting included an image of a student and a friend with their middle fingers raised, along with her text expressing a similar sentiment, using the “F” curse word four times, expressing dissatisfaction with her school, softball, cheerleading, and “everything else.” When her coach became aware of it, the school suspended her from cheerleading for a year, claiming she violated the institution’s “Code of Conduct” and that punishment was necessary to “avoid chaos,” and maintain a cohesive “team-like” environment.

The student, through her supportive parents, sued and prevailed in a decision by the 3rd U.S. Circuit Court of Appeals, which held that the First Amendment right of public school students extended to speech outside of school grounds. B.L. v. Mahanoy Area School District, 964 F. 3rd 170 (3rd Cir. 2020). But because of conflicts with decisions by other courts, the high court in January used the split among jurisdictions to take the case and heard it by its remote Zoom technology near the end of April. No. 20-255 (April 28, 2021).

Although the legality of the middle finger gesture is new to the justices, it’s not the first time the court has dealt with the “F” nomenclature, dating back to Cohen v. California, 416 U.S. 5 (1971), a case in which it threw out court-imposed punishment for a man who was wearing a “’F’ the Draft” slogan on the back of his jacket in a California state courtroom, contrary to the judge’s view of the required decorum of that tribunal. The high court held that the term was constitutionally protected speech.

In 2019, a different variant of the phrase came before the high court in Iancu v. Bruneti, 139 S.Ct. 2294 (2019), which concerned the refusal of the government to allow trade mark for the term “FUCT” as a name for a men’s apparel line on grounds that it was “offensive.” The court there ruled that the declination was an unconstitutional violation of freedom of expression.

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Initial impact

The justices will now have to decide for the initial time what to do about the middle finger gesture. Clues at the unusually lengthy two-hour oral argument emerged, where the student’s counsel urged affirmance so that students can “voice their emotions … without fear of school censorship,” a position countered by the school district’s lawyer who viewed the off-campus situs of the remarks to be “irrelevant” and urged the justices to focus on the “school audience” and “school topic” as decisive factors in permitting punishment for the social media vulgarity.

Overall, the majority of the justices seemed to be looking for a middle ground but inclined to overturn the appellate court ruling.

Justice Stephen Breyer questioned the scope of the school’s authority to discipline for off-campus expressions, and Justice Brett Kavanaugh, the most vocal questioner, thought the one-year suspension “seems excessive,” although he suggested a narrow ruling giving school administrators latitude to impose punishment. Other justices took up different concerns, like Justice Clarence Thomas, who asked about a different, lesser standard for sanctioning members of teams, like the cheerleading squad, a distinction advanced by the school’s counsel, while Justice Samuel Alito urged his colleagues to develop a “clear rule.”

The outcome, of course, remains in doubt. But whatever is decided could have significant impact on student discipline, an issue that has been visited by the Minnesota Supreme Court in connection with harassing or threatening communications.

Indeed, the case could have even broader implications beyond the school house. The upcoming decision could reverberate on the use of social media, a hot topic these days.

Additionally, it could have implications for discipline of public sector employees for engaging in the use of social media while off duty. There has been a spate of those cases in recent years, deemed to be socially unacceptable, including racist, violent threats and the like. The courts have generally held that such discipline is appropriate in most circumstances, due to the particular content and context of the speech, but the issue is not that clear cut. The cases have primarily concerned public sector employees, who are clothed with First Amendment rights, unlike their counterparts in the private sector, who generally have no such protection.

The decision also could reverberate to private sector employment and could raise questions about whether employees can be punished for off-duty behavior that takes place outside of their normal scope, whether it be school yards or workplaces.

As these concerns reflect, the Supreme Court will have a big job on its hands when it soon decides the BL case before the end of the current term in the coming weeks.

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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.