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Legal Learning: When the middle finger heads to court

There have been some interesting cases lately dealing with flipping the bird.

In Sterling, Virginia, a woman named Juli Briskman raised her middle finger at a presidential motorcade that was leaving President Trump's golf course last month. She told the Huffington Post that when she saw Trump's motorcade come up next to her while riding her bicycle, her "blood just started to boil."

"I'm thinking, DACA (Deferred Action for Childhood Arrivals) recipients are getting kicked out. He pulled ads for open enrollment in ObamaCare," she said. "Only one-third of Puerto Rico has power. I'm thinking, he's at the damn golf course again."

A photo of her act went viral.

It didn't turn out very well for her. Her employer, a government contractor called Akima, was not amused and fired her from her job. They told her she violated the company's social media policy because she used the photo as her profile picture. Akima told her you can't have "lewd" or "obscene" things on your social media.

There was a silver lining for her, however. The GoFundMe campaign, titled "Thank You Juli Briskman," raised more than $30,000 for the former government contractor in its first three days.

"Juli Briskman is an inspiration to us all," the campaign reads. "This week, we learned that she was fired from her employer for exercising her First Amendment rights. You can show your support by donating here."

They are wrong about the First Amendment. While Juli Briskman has a constitutional right to flip the bird, the First Amendment says that the government cannot punish her for doing so. A private company is not the government, and it was perfectly legal for them to fire her.

This point is illustrated by a decision in October of the Georgia Supreme Court. David Justin Freeman was convicted under a law that defines disorderly conduct as acting "in a violent or tumultuous manner" toward another person in a way that makes that person reasonably fear for his or her safety.

The incident occurred at the 12 Stones Church when Pastor Jason Berry asked teachers in the congregation to stand so everyone could pray for a successful school year. Freeman also stood, stared angrily at the pastor and raised his middle finger, causing the pastor to feel afraid. At the end of the service, Freeman began yelling about sending children to evil public schools, where they would be raised by Satan.

The Georgia Supreme Court reversed his conviction, ruling that Freeman's conduct did not amount to "fighting words" or a true threat, and his raised finger was constitutionally protected expression. The government therefore can't prosecute him for his act.

The court was relying on a 1969 decision of the U.S. Supreme Court, Brandenburg v. Ohio. In that case, the court ruled that speech can only be made a crime if it is directed at inciting imminent lawless action and is likely to produce such action. And "speech" includes acts that are intended to convey an idea — even a rude or vulgar idea.

The middle finger has been involved in other judicial hearings. An appellate court in Hartford, Connecticut, ruled that gesturing with the middle finger was offensive, but not obscene, after a police officer charged a 16-year-old with making an obscene gesture when the student gave the officer the middle finger.  The case was appealed to the Connecticut Supreme Court, which upheld the decision.

According to Wikipedia, some people haven't been so lucky. A Malaysian man was reportedly bludgeoned to death after giving the finger to a motorist following a car chase. A Pakistani man was deported by the United Arab Emirates for the gesture, which violated their indecency codes.

So, if you want to flip the bird or give someone the finger, be careful not to post a photo of it on Facebook, and be especially careful not to do it in Pakistan or the United Arab Emirates.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's top 10 attorneys. He now handles family law, wills and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer.

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