Last updated: July 31. 2014 1:26AM - 814 Views
A Daily Journal editorial



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The bird. The finger. The Bronx salute. It’s as old as ancient Rome, and over the centuries, the hand gesture hasn’t lost its peculiar power to offend.


A sheriff’s deputy in neighboring Anson County was so ticked off over being flipped off that he left the scene of a homicide investigation to arrest a 19-year-old who flashed his middle finger as he drove past.


Deputy Vance Bennett charged William Dunlap of Wadesboro with misdemeanor disorderly conduct for giving him the finger on Monday. An arrest warrant states that Dunlap flipped Bennett the bird while passing a home on U.S. 52 North where a 21-year-old was shot to death in a home invasion hours before.


The killing rattled rural Anson County, and we’re sure the deputies were on edge Monday morning as they stood watch outside the home where Dameon Thomas was shot and killed. Tension was high. Dunlap’s defiant gesture struck a nerve.


So Bennett sped off, siren blaring, blue lights flashing, pulled over Dunlap’s car and hauled him away in handcuffs.


The thoughtless teen was charged under a North Carolina statute that classifies “any utterance, gesture, display or abusive language which is intended to and plainly likely to provoke violent retaliation and thereby cause a breach of the peace” as misdemeanor disorderly conduct.


Let us be the first to say that Dunlap’s act was rude, tasteless, unnecessary and immature. But let us also be the first to say that the response was disproportionate and the arrest unjustified.


The bird’s been around since at least 400 BC — Romans called it the “digitus impudicus,” or the indecent finger — and the Dunlap dust-up wasn’t the first time someone’s made the gesture to a law enforcement officer in the United States.


As a rule of thumb, the finger is protected speech under the First Amendment. Rulings vary based on circumstances and accompanying behavior, but there’s a general consensus in the courts that flipping the bird by itself does not rise to the level of a crime.


Just last year, the Second U.S. Circuit Court of Appeals reinstated a New York man’s civil-rights lawsuit against police who pulled him over for giving officers the middle finger at a traffic checkpoint. Federal appellate judges wrote that the simple gesture did not give police probable cause to stop the man on suspicion of disorderly conduct.


The nation’s high court notes that law enforcement officers are public officials and that American citizens have the constitutional right to criticize them, even if they choose to do so in offensive ways.


We don’t think leaving the scene of a serious crime to arrest someone for the “crime” of hurting a deputy’s feelings was a wise use of public resources.


The arrest also highlights a vague and likely unconstitutional provision in our state law that needs to be revised in the General Assembly.


Punishing speech or nonverbal gestures that might “provoke violent retaliation” amounts to a heckler’s veto. A speaker who says something offensive is held responsible for a listener’s hypothetical overreaction.


Our state lawmakers think foul language and vulgar hand gestures have the power to make otherwise law-abiding people fly into a rage “and thereby cause a breach of the peace.” We fundamentally disagree with this flawed premise.


Words and gestures have only the power we give them. Rational people can and do choose to ignore insult instead of escalating a verbal exchange to a physical confrontation.


Flipping the bird to a public servant at the scene of a crime may be infantile, but state lawmakers suggesting we can’t deal with the sight of a raised finger without becoming violent offends us more than a hand gesture ever could.

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