Flipping 'The Bird' Just Isn't Obscene Anymore, Law Professor Argues
ROBERT SIEGEL, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
AUDIE CORNISH, HOST:
And I'm Audie Cornish. NBC and the NFL had to issue apologies this week over the Super Bowl halftime show. British singer M.I.A. made an obscene gesture during her performance with Madonna, flipping her middle finger to a Super Bowl audience of 114 million.
(SOUNDBITE OF SUPER BOWL HALFTIME PERFORMANCE)
CORNISH: Pop stars seem especially fond of the gesture. Famous finger flippers include everyone from country star Johnny Cash to pop starlet Lady Gaga.
Ira Robbins, law professor at American University, knows the history of this particular insult well. He joins us now to talk about it. Hello there, Ira Robbins.
IRA ROBBINS: Hi, Audie.
CORNISH: So, to start, where does this gesture come from? And how far back in history do we have to go, to find people taking offense to it?
ROBBINS: If you go back in recorded history, it's about 2,500 years, although there are apocryphal stories that it goes back even further. The Greek playwright Aristophanes refers to the middle finger in his play "The Clouds," basically treating it as a phallic symbol.
We see this in Roman literature as well, and Roman history. In fact, the use of the middle finger was so prevalent in those times that they gave it a special name. They called it the digitus impudicus, meaning the impudent finger.
CORNISH: Can you describe, maybe, what the most famous incident of its use has been?
ROBBINS: There is no one, most famous use. It's a prevalent gesture. We've seen it not only from entertainers this week and in recent months and years, but two years ago, Senator Jim Bunning, a U.S. senator, used the finger toward a journalist when they got into some sort of verbal altercation.
You led into this story referring to this as an obscene gesture. I would have to argue that it's not obscene at all; that it's part of the mainstream in American culture.
CORNISH: And there have been a lot of legal cases over the years, I gather, about the middle finger. And I don't know if it's ever really been considered illegal, or worth suing over.
ROBBINS: It is considered illegal in many jurisdictions, but there is a case from Oregon in 2010, in which a regular guy thought that he had an absolute First Amendment right to give the finger to police officers whenever he saw them - not just if he was being ticketed. Dozens, sometimes hundreds of times a day, whenever he would pass a police officer, he would give the finger.
And they brought him to court on this, on disorderly conduct charges. He ultimately won. He settled for $1,000, but in other jurisdictions in which the application of the disorderly conduct statute has been tested, there have been settlements for as high as $50,000.
CORNISH: Ira, is there anything that surprised you about the way people reacted to this latest incident with the middle finger?
ROBBINS: I was surprised at how many reporters, and the NFL itself, have referred to this as an obscene gesture, something that was risque and inappropriate. And I'd have to say, I don't see it as obscene. I didn't see it as risque. Maybe the dancing during the halftime show was risque, but I don't see the use of the finger as that. Now, is it appropriate for parents to have their children see this during prime time? Arguably not, but that's a very different issue from the constitutional right to use the gesture.
CORNISH: Ira Robbins, professor of law and justice at American University, thanks so much for talking with us.
ROBBINS: Thanks for having me.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.