Flipping the bird puts First Amendment freedom to the test


Raj Satpathy

Art by Michelle Zhuang
Every single citizen in the United States should be aware of our “inalienable rights.” The supreme law of the land, the Constitution, guarantees certain privileges to everybody in the United States, regardless of race, religion, gender or creed. Most will agree that we have to fight to protect these rights, but John Swartz of upstate New York did this in an extremely unusual manner: flipping off a police officer.
I guess sometimes, you just have to let go. Emotions run high. Your temper flares, and you just have to let that bird fly. It’s never the best idea, but, hey, eventually, it happens. That being said, depending on where you let loose, you might be facing some seriously unpleasant consequences.
Swartz discovered this seven years ago, when a cop arrested him for raising his middle finger towards the officer after realizing the cop was using his radar gun on Swartz’s car. On Jan. 3, the Federal Court of Appeals overturned Swartz’ arrest, freeing him of liabilities or guilt.
Officer Richard Insogna’s reason for arresting Swartz was he believed the man might pose a threat to his own wife, who was driving the car.
“I just wanted to ensure the safety of the passengers,” Insogna said. “I was concerned for the female driver, if there was a domestic dispute.”
That is an excuse that smacks of an abuse of power. The Court also believed so, as it ruled that it wasn’t legal for Insogna to arrest Swartz. It’s ludicrous that a simple middle finger could be legitimately construed as a threat of violence. The disrespect that Swartz exhibited towards Officer Insogna incensed the cop, but a simple reprimanding by the officer would have sufficed. If Insogna deemed that insufficient, then at the very most, he could issue a ticket for disturbing the peace, but even that would be a reach.
The middle finger is undeniably a rude gesture. But what Officer Insogna didn’t take into account was the highest law of the land: the Constitution.
The First Amendment guarantees free speech. Now, while “free speech” technically only applies to spoken word, the implied meaning of the First Amendment is a guaranteed “freedom of expression.”
In other words, we are free to say and do whatever we want within the realm of reason — nobody can infringe upon our right to do so.
Such a protection does not fold over everything one can do. There are some regulations, but as long as one is not infringing on anybody else’s rights, it’s usually in the clear. The law even protects hate speech, for the most part. That’s why organizations such as the Westboro Baptist Church can protest.
To test if something is not protected, the “clear and present danger” test can be used, established by Schenck v. U.S. in 1919. Does the speech incite panic or violence? If it doesn’t, and if it isn’t instigating rebellion in a threatening manner, then it’s in the clear.
Swartz’s flaunting of his middle finger at Office Insogna was distasteful, but the action violated no laws. In fact, it was the officer who was ultimately in the wrong. Though Swartz v. Insogna never made it to the Supreme Court, the Court of Appeals could have drawn upon several precedents set by the highest court in the country. Chief amongst them is Tinker v. Des Moines, a landmark case that highlighted the once tacit existence of freedom of expression. Texas v. Johnson further enumerated the right to express oneself as wanted without retribution. If the First Amendment protects flag burning, wouldn’t it protect a relatively simple gesture of defiance?
The entire situation was a waste of time, insofar as Swartz is concerned. However, it has given something to the nation as a whole: a reminder that our rights are inalienable, but that they are also ours to protect. It may be a vulgar right he protected, but Swartz has guaranteed us a greater modicum of liberty than we ever enjoyed before.
Swartz v. Insogna is only a symptom of the disease that envelopes the nation. We cannot sit back and expect all of our rights to be upheld. Though the system of “checks and balances” is meant to protect our rights, it is only a form of balance within government. Should the government attempt to infringe upon our rights, it is up to the people to ensure that no such thing happens.
In an ideal world, there would be no need to protect ourselves, but unfortunately, this isn’t one. Infringements upon our rights will happen. Just look at the Stop Online Piracy Act, or the indefinite detention clause in the National Defense Authorization Act — these are things that we need to fight back against. There has to be greater public education on our individual rights, and people need to stand up against any and all acts of injustice.
As President Abraham Lincoln said, this nation is “of the people, for the people, by the people.” It is our duty as citizens of these United States to involve ourselves. Whether that be through suing a police officer for arresting you or by running for public office or through something as simple as voting, we are obligated to keep this nation as we want it; as unfettered, beautiful and full of promise as a soaring bird.
By Raj Satpathy
Should offensive speech be protected under the First Amendment?