Suit Asks "Finger" Be Recognized as First Amendment Protected Speech

Updated 36 weeks ago Edited by Tony Rutherford from Multiple Reports
Middle Finger Halloween Costume
Middle Finger Halloween Costume

An Indiana man represented by the American Civil Liberties Union asks a federal court to rule that the so-called "finger" gesture is constitutionally protected under the First Amendment. 

According to the Federal Court Complaint, Mark May was cut off in traffic by Indiana State Trooper Matt Ames on U.S. 41. The trooper stopped a vehicle and as May passed, he deliberately made a rude gesture ("the finger") at Trooper Ames. 

When Ames saw the gesture, he pursued May, pulled him over and gave him a ticket for a Class C infraction known as provocation, subject to a $500 fine. 

The Indiana statute states in full:

"...a person who recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery commits provocation, a Class C infraction..."

May challenged the ticket in Terre Haute City Court where it was upheld, but the Vigo Superior Court vacated the conviction when the prosecutor's office declined to proceed.  

Trooper Ames testified in City Court that  "the sole reason he stopped Mr. May was because of the gesture."

The federal court suit alleges that the "unreasonable" traffic stop "implicated" Fourth Amendment search and seizure protection and that the "gesture is expressive conduct that was fully protected by the First Amendment of the United States Constitution." 

Although the Indiana suit asks for two days wages and attorney fees, a former attorney for the WV State Police related a case that cost the state's insurer one million dollars.

The attorney described two teens conspiring for one of them to flip off a trooper while the other recorded the outcome. The unnamed trooper sitting in a cruiser near a car lot engaged the expressive young man aggressively , resulting in an insurance settlement, the attorney said in a classroom lesson. 

The Indiana suit can be viewed as a PDF download below. 

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