Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`79055664
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`DAVID L MAY
`NIXON PEABODY LLP
`401 9TH STREET NW, SUITE 900
`WASHINGTON, DC 20040-2128
`UNITED STATES
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`dmay@nixonpeabody.com, was.managing.c|erk@nixonpeabody.com,
`IgoIden@nixonpeabody.com
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`Reply Brief
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`App|icant_s_Rep|y_Brief.pdf ( 10 pages )(24864 bytes )
`Ex1.pdf ( 40 pages )(211132 bytes )
`Ex2.pdf (40 pages )(221160 bytes )
`Ex3.pdf ( 65 pages )(7581324 bytes )
`Laura D. Golden
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`nptm@nixonpeabody.com, was.managing.c|erk@nixonpeabody.com,
`dmay@nixonpeabody.com, |go|den@nixonpeabody.com
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`/|dg5x/
`04/19/2011
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`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA404555
`ESTTA Tracking number:
`04/19/2011
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`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`79055664
`Luxuria, s.r.o.
`DAVID L MAY
`NIXON PEABODY LLP
`401 9TH STREET NW, SUITE 900
`WASHINGTON, DC 20040-2128
`UNITED STATES
`dmay@nixonpeabody.com, was.managing.clerk@nixonpeabody.com,
`lgolden@nixonpeabody.com
`Reply Brief
`Applicant_s_Reply_Brief.pdf ( 10 pages )(24864 bytes )
`Ex1.pdf ( 40 pages )(211132 bytes )
`Ex2.pdf ( 40 pages )(221160 bytes )
`Ex3.pdf ( 65 pages )(7581324 bytes )
`Laura D. Golden
`nptm@nixonpeabody.com, was.managing.clerk@nixonpeabody.com,
`dmay@nixonpeabody.com, lgolden@nixonpeabody.com
`/ldg5x/
`04/19/2011
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`Proceeding
`Applicant
`Correspondence
`Address
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`Submission
`Attachments
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`Filer's Name
`Filer's e-mail
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`Signature
`Date
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`In re Trademark Application of )
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`LUXURIA, s.r.o.
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`Serial No.: 79/055,664
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`Filed: March 12, 2008
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`Mark: Design Only
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` ) Law Office: 112
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` ) Trademark Examining Attorney:
` ) Charisma Hampton
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`APPLICANT’S REPLY BRIEF
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` David L. May
` Nixon Peabody LLP
`th Street, N.W., Suite 900
` 401 9
` Washington D.C. 20040-2128
` Telephone: 202-585-8000
` Fax: 202-585-8080
` E-mail:
`nptm@nixonpeabody.com
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`13410539.1
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`TABLE OF AUTHORITIES
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` Page
`Cases
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`Boswell and Clement v. Mavety Media Group Ltd.,
` 1999 TTAB LEXIS 360 (TTAB 1999) ...............................................................................7
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`Bromberg v. Carmel Self Service, Inc.,
` 198 USPQ 176 (TTAB 1978) .............................................................................................7
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`Harjo v. Pro Football Inc.,
` 50 USPQ2d 1705 (TTAB 1999) .........................................................................................7
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`In re Bad Frog Brewery, Inc.
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`1999 TTAB LEXIS 86 (TTAB 1999)..............................................................................3-4
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`In re The Gracious Lady Service, Inc.,
` 175 USPQ 380 (TTAB 1972). ............................................................................................7
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`In re Mavety Media Group Ltd.,
` 33 F.3d 1367, 31 USPQ2d 1923 (Fed. Cir. 1994)...................................................... 1, 6, 7
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`In re Merrill Lynch, Pierce, Fenner and Smith, Inc.,
` 828 F.2d 1567 (Fed. Cir. 1987) ...........................................................................................7
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`In re Over Our Heads Inc.,
` 16 USPQ2d 1653 (TTAB 1990)..........................................................................................6
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`Ritchie v. Simpson,
` 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999) ............................................................7
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`Statutes
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`Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a)............................................1, 2, 4, 6, 7, 8
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`Other References
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`Martha Irvine, Is the Middle Finger Losing Its Shock Value?, COLUMBIAN, Feb. 26, 2003.......2, 5
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`Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403,
`1407-08 (2008) ........................................................................................................................2-3, 5
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`Darren Aronofsky’s Middle Finger A ‘Digit Of Interest’ In FCC’s Golden Globes Indecency
`Inquest, Jan. 16, 2009, http://www.defamer.com.au/2009/01/darren_aronofskys_middle_
`finger_a_digit_of_interest_in_fccs_golden_globes_indecency_inquest-2/.................................5-6
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`13410539.1
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`

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`Applicant LUXURIA, s.r.o. (“Applicant”) respectfully submits this reply brief in support
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`of its appeal its appeal from the Final Office Action dated May 27, 2009, in which the
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`Trademark Examining Attorney made final the refusal to register the trademark shown in U.S.
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`Trademark Serial No. 79/055,664 under Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a),
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`on the grounds that Applicant’s Mark “consists of or comprises immoral or scandalous matter.”
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`Applicant filed its Appeal Brief on November 12, 2010 and the Examining Attorney filed her
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`Appeal Brief on January 13, 2011. Applicant filed a request to extend the deadline for filing a
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`Reply Brief on January 26, 2011, and this request was subsequently granted on January 31, 2011.
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`Applicant herein submits additional arguments supporting its position that the Trademark
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`Examining Attorney’s refusal was in error, and should be reversed.
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`
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`ARGUMENT
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`To be considered “scandalous,” the Trademark Examining Attorney must prove that the
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`mark is “shocking to the sense of truth, decency or propriety; disgraceful; offensive;
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`disreputable; . . . giving offense to the conscience or moral feelings; . . . [or] calling out [for]
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`condemnation” in the context of the marketplace as applied to goods and/or services described in
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`the application. In re Mavety Media Group Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925
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`(Fed. Cir. 1994) (citation omitted). Scandalous is to be determined from “the standpoint of not
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`necessarily a majority, but a substantial composite of the general public, . . . and in the context of
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`contemporary attitudes” (id., at 1371, 31 USPQ2d at 1925 (citation omitted)), while being
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`“mindful of ever-changing social attitudes and sensitivities” Id.
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`I
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`THE TRADEMARK EXAMINING FAILED TO CONSIDER
`CONTEMPORARY ATTITUDES CONCERNING THE GESTURE
`DEPICTED IN APPLICANT’S MARK
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`The Trademark Examining Attorney has failed to consider contemporary attitudes
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`concerning the gesture depicted in Applicant’s Mark, namely, “giving the finger,” as well as
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`alternative possible meanings for the gesture, which are influenced by the shift in attitude. Based
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`on these changes, Applicant submits that the evidence of record shows that contemporary
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`attitudes concerning “giving the finger” have changed, such that the gesture – when appearing in
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`a vacuum, such that it is not directed to a particular individual or group – is not immoral or
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`scandalous within the meaning of Section 2(a) of the Trademark Act.
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`Indeed, there is ample evidence that both the meaning and the public perception of the
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`middle finger gesture has changed in recent years. As explained by one interviewee, to one
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`author, it’s a “more general symbol of ‘Shut up’ or ‘You’re an idiot.” Martha Irvine, Is the
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`Middle Finger Losing Its Shock Value?, COLUMBIAN, Feb. 26, 2003. This article is appended as
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`Exhibit A. In the same article, a father recounts a story in which his six year old son gives the
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`finger to another child who had stuck out his tongue; the father explains that he isn’t worried:
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`“The kid who poked out his tongue at my son was just delivering the kiddies version of the
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`finger anyway. […] So he probably deserved to get the real McCoy fired back at him.” Id. This
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`subject is a good indicator of modern perception of the middle finger and acceptance of
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`alternative meanings for the same.
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`Today’s public acknowledges that there are multiple situations in which the middle finger
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`may be used, and that it may be taken to have just as many meanings. In discussing a number of
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`news articles and case law citations, Ira P. Robbins notes, “As these stories illustrate, the middle
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`finger gesture serves as a nonverbal expression of anger, rage, frustration, disdain, protest,
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`defiance, comfort, or even excitement at finding a perfect pair of shoes.” Ira P. Robbins, Digitus
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`Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1407-08 (2008)
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`(internal citations omitted). This article is attached hereto as Exhibit B. Additional evidence
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`shows that the gesture is often used in a cheeky and fun manner, between friends. Attached as
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`Exhibit C are images of various individuals “giving the bird.” These images come from a
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`number of different websites that include images of “the bird,” including
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`<www.themiddlefinger.com>. These images include publicity shots, pictures on concert stages,
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`smiling poses, and a wide variety of other indicators that the gesture is not always meant
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`offensively and is often now used in a good-natured way. Indeed, some of the photos are tagged
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`with the “humor” caption on these websites. These images capture a modern perception of what
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`it means to “flip the bird” and make it clear that the gesture is not scandalous or obscene, but
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`commonly accepted.
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`This perception is strengthened by the image attached as Exhibit D, which is a copy of
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`the Notice of Acceptance of §§8 & 15 Declaration issued by the USPTO in support of In re Bad
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`Frog Brewery’s U.S. Trademark Registration No. 2278594. The Examining Attorney has made
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`much of the fact that the decision in In re Bad Frog Brewery, 1999 TTAB LEXIS 86 (TTAB
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`1999) would not have applied to a situation involving a humanized hand. In response to this,
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`Applicant reiterates that the specimen of use submitted in that very case shows a woman
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`“flipping the bird” while wearing Bad Frog Brewery’s apparel. Not only does this specimen
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`shows a humanized hand raising the middle finger, but the USPTO’s acceptance of the specimen
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`unequivocally supports the fact that the USPTO did not find the gesture to be scandalous or
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`offensive. This decision accords with the Board’s decision that “even when humans give the
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`finger to a particular individual or a group, that…said gesture may be acceptable” and supports
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`registration of the current mark. Id at *6.
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`In addition to the foregoing, Applicant also notes that U.S. Trademark Application No.
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`77/697,434 was approved for registration of a design of a human hand (or skeleton thereof)
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`clearly showing the middle finger raised. Attached as Exhibit E is the file history of this
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`application, as previously submitted. As in the present case, and as was the case in In re Bad
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`Frog Brewery, the mark in this application is not directed to any particular individual or a group.
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`In accord with the Board’s position in In re Bad Frog Brewery, the Office has approved the mark
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`for publication without objection under Trademark Section 2(a). This case also undercuts the
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`Examiner’s argument that the registration in In re Bad Frog Brewery is limited to situations of
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`non-human hands and that human hands would not be allowed to register. The approved
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`trademark in Application No. 77/697,434 was clearly a humanized hand and was still published
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`for opposition after successfully passing the examination period. Applicant reiterates its
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`argument that the gesture has a number of accepted meanings and that the gesture as shown,
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`when not directed at anyone, even when made by a human hand, is not an obscene or offensive
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`gesture, and should be published for opposition.
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`Applicant in the present case plans to market its beverages under the REVOLT! trade
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`name, and intends its visual imagery to be associated with a message of defiance or revolt. This
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`interpretation of its bottle shape is consistent with modern, alternative meanings for the gesture,
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`supported even by the USPTO’s acceptance of the specimen in In re Bad Frog Brewery, and the
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`mark is therefore entitled to registration.
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`Even to the extent that the gesture is meant as a gesture for “F--- You,” as contended by
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`the Examining Attorney, it is not true that the general public finds its use offensive. Robbins
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`notes in his article:
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`The gesture has appeared on streets and highways, in schools, shopping malls, concert
`venues, stadiums, courts, and execution chambers, in advertisements and on magazine
`covers, and even on the hallowed floors of legislatures. Although its meaning
`has remained relatively constant over time, the middle finger gesture — like the f-
`word — has become part of the American vernacular and, in the process, shed its
`“taboo status.” One newspaper reporter recently complained that the excessive use of the
`gesture is causing it to lose its offensive impact, lamenting that “[o]ur most precious
`obscene gesture is being overused, abused, and ultimately ruined”; another lamented,
`“Sad to say, the bird just doesn’t do the trick anymore.”
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`Supra, 1408-10 (internal citations omitted). As explained by another interviewee in the Irvine
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`article, “It’s part of the shift from ‘Have a nice day’ to ‘Make my day.’” Irvine, supra.
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`As evidence of the public perception of the mark, the Examining Attorney points to two
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`articles regarding the Federal Communications Commission’s (FCC) reactions to the middle
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`finger on television. However, these articles are not dispositive, as the Examiner implies. First,
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`the FCC has not made any sort of blanket determination as to the use of the middle finger on
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`television and as the articles imply, this question is context specific and there is a place for these
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`gestures in the public dialogue. Secondly, the FCC’s decision is not at all indicative of the
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`general public perception of the gesture. Indeed, it is clear from the articles that the FCC
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`decision was made in response to eighteen complaints, out of the millions of viewers. This
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`number of scandalized viewers does not constitute “the substantial composite of the general
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`public” necessary to find a mark scandalous. In response to the FCC’s decision to review the
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`matter, an online article noted, “it’s going to take something a lot worse than a middle finger to
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`shock more than 18 Americans these days.” Darren Aronofsky’s Middle Finger A ‘Digit Of
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`Interest’ In FCC’s Golden Globes Indecency Inquest, Jan. 16, 2009, http://www.defamer.com.
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`au/2009/01/darren_aronofskys_middle_finger_a_digit_of_interest_in_fccs_golden_globes_indec
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`ency_inquest-2/. This article is attached as Exhibit F.
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` Based on the evidence as to public perception of alternative meanings of the middle
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`finger gesture, as well as public perception of the gesture used as the Examining Attorney
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`narrowly defines it, it is clear that a bottle shaped like a hand with an extended middle finger
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`does not rise to the level of “scandalous or immoral” necessary to deny registration of the mark
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`under Section 2(a) of the Trademark Act. In light of the foregoing, Applicant requests that this
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`refusal be reconsidered and withdrawn.
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`II
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`ANY DOUBT AS TO THE IMMORAL OR SCANDALOUS
`NATURE OF APPLICANT’S MARK MUST BE RESOLVED
`IN FAVOR OR PUBLICATION
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`As previously noted, in this case, there is a clear difference of opinion between Applicant
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`and the Trademark Examining Attorney as to whether Applicant’s Mark is “immoral or
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`scandalous.” In another case involving Section 2(a), the Board stated that “the guidelines for
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`determining whether a mark is scandalous . . . are somewhat vague and the determination [of
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`whether] a mark is scandalous . . . is necessarily a highly subjective one.” In re Over Our Heads
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`Inc., 16 USPQ2d 1653, 1654, n.1 (TTAB 1990) (citation omitted). Therefore, the Board
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`continued, “we are inclined to resolve doubts on the issue of whether a mark is scandalous . . . in
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`favor of applicant and pass the mark for publication with the knowledge that if a group does find
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`the mark to be scandalous . . . , an opposition proceeding can be brought and a more complete
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`record can be established.” Id. Thus, Applicant respectfully submits that this practice, which
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`has been commended by the Court of Appeals for the Federal Circuit, see Mavety Media Group,
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`33 F.3d at 1374, 31 USPQ2d at 1928, should be applied here. The same rationale has been used
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`to support publication of a mark in trademark cases where a subjective test leads to doubt as to
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`whether a mark should be denied on the grounds of descriptiveness. See, e.g., In re Merrill
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`Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567 (Fed. Cir. 1987); In re The Gracious Lady
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`Service, Inc., 175 USPQ 380 (TTAB 1972).
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`This reasoning has also been strengthened by case law upholding the right of members of
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`the general public to oppose registration of an alleged “scandalous” trademark on the basis that
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`the mark caused injury to one’s personal beliefs. Notably, one of these cases followed the
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`Federal Circuit’s decision in Mavety Media Group, discussed above. Boswell and Clement v.
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`Mavety Media Group Ltd., 1999 TTAB LEXIS 360 (TTAB 1999) (“As a member of the group
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`which is asserted to be disparaged or brought into contempt or disrepute by the mark BLACK
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`TAIL, she has clearly demonstrated her standing in this proceeding,” citing Ritchie v. Simpson,
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`170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Harjo v. Pro Football Inc., 50 USPQ2d 1705
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`(TTAB 1999); Bromberg v. Carmel Self Service, Inc., 198 USPQ 176 (TTAB 1978).) In light of
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`this line of precedent, there is ample evidence that third parties can, and do, oppose registration
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`of scandalous trademarks, if there is sufficient public need for the same.
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`To the extent that there is doubt as to the immoral or scandalous nature of the mark, as is
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`the case here, that doubt must be resolved in favor of publication. See Mavety Media Group, 33
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`F.3d at 1374. As such, Applicant requests that the Section 2(a) refusal be withdrawn and the
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`mark be published for opposition.
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`CONCLUSION
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`For the reasons set forth above, Applicant submits that Applicant’s Mark is not “immoral
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`or scandalous” with the meaning of Section 2(a) of the Trademark Act, and respectfully requests
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`that the Board reverse the Trademark Examining Attorney’s decision refusing registration.
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`Respectfully submitted,
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` _/david l. may/
` David L. May
` Attorney, DC Bar Member
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`______________
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` Nixon Peabody LLP
`th Street, N.W. Suite 900
` 401 9
` Washington D.C. 20040-2128
` Telephone: 202-585-8000
` Fax: 202-585-8080
`nptm@nixonpeabody.com
` E-mail:
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`Dated: April 19, 2011
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`13410539.1
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`EXHIBIT AEXHIBIT A
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`EXHIBIT A
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`2/26/03 COLUMBIAWA 4
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`Page 1
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`2/26/03 Columbian (Vancouver, WA) 4
`2003 WLNR 6826562
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`COLUMBIAN (VANCOUVER, WA)
`Copyright © 2004 ProQuest Information and Learning. All rights reserved.
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`February 26, 2003
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`Is middle finger losing its shock value?
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`IRVINE, MARTHA
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`Even more than a decade later, Laura Kremp is still a little shocked at the gesture her mom made when a man
`driving a big, ol' Cadillac cut them off in a mall parking lot. "She flipped the guy the bird!" Kremp says, laugh-
`ing at the childhood memory.
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`Flashing the middle finger was the ultimate insult when Kremp was growing up, or at least with its vulgar,
`sexual connotation a very naughty thing to do. These days, "the bird" is flying everywhere and, in many in-
`stances, losing its taboo status, especially among the younger set.
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`Celebrities use it. Star athletes all but flaunt it. Even small children occasionally raise a grumpy middle finger
`in a world where Ozzie and Harriet have been replaced by Ozzy and Sharon, the foul- mouthed, bird-flipping
`parents from the MTV reality show, "The Osbournes."
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`Some say the finger's prevalence is a sign of just how desensitized we've all become to our own crassness.
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`"It's just another example of the drift further and further into the culture of disrespect," says David Walsh, pres-
`ident of the National Institute on Media and the Family, a Minneapolis-based nonprofit that monitors popular
`media. "It's part of the shift from 'Have a nice day' to 'Make my day."'
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`Others, however, wish we'd all just loosen up. The middle finger doesn't always carry the same meaning to
`everyone, they say.
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`Kremp now 24 and a creative director at a communications training firm in suburban Philadelphia still could
`never imagine her mother becoming a regular bird-flipper, for example.
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`But she sees plenty of other people using it, to express displeasure at anything from a frozen computer screen
`to a referee's questionable call or that driver who's riding your tail on the highway.
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`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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`2/26/03 COLUMBIAWA 4
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`Page 2
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`And, she says, its meaning isn't always negative: "It can be done out of excitement, joy or if you finally found
`the perfect pair of shoes to go with a new outfit."
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`Often, the middle finger is used among friends, either to tease or express mild annoyance, says Matt Meyers, a
`23-year-old New Yorker who works as an administrative assistant at a bank.
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`To him, it's "more general symbol of, 'Shut up' or 'You're an idiot.'"
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`Matt Patterson, a Los Angeles writer who co-authored the tongue- in-cheek book "The Finger: A Comprehensive
`Guide to Flipping Off," agrees that today's middle finger has many nuances. But context still matters, he says,
`noting that "a finger given in anger is another story" particularly for celebrities.
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`That means actress Cameron Diaz might get away with posing, middle finger extended, for an Esquire
`magazine photo, as she did last year. She might even seem "edgy" or "cool" to some.
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`But singer Britney Spears found herself apologizing to Mexican fans last summer after they thought she
`flipped them off. (Spears says the gesture was intended only for aggressive paparazzi who were hounding her.)
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`New York Giants tight end Jeremy Shockey was fined $10,000 after he threw ice and gave the finger to fans in
`San Francisco during a recent playoff game.
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`And late last month, Indiana Pacers forward Ron Artest gave the Miami crowd both barrels as he backed away
`from the foul line after hitting a free throw. He was suspended for four games.
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`The lesson here: Don't flip off the fans.
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`Outside of sports, however, Savage says TV networks' habit of beeping out foul language and blurring middle
`fingers including on "The Osbournes" is mostly for show.
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`"There's an aspect of American culture that's about appearances, rather than reality," he says. "If you beep
`something, you appear as though you're being a moral guardian."
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`Meanwhile, MTV sells Osbourne T-shirts and posters with several family members openly extending their
`middle fingers "There goes the (expletive) neighborhood," one T-shirt reads.
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`Still, even some parents wonder if critics are taking the gesture one that historians say has been around since an-
`cient Greek times a bit too seriously.
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`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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`2/26/03 COLUMBIAWA 4
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`Simon Bloomberg, a newspaper columnist in Nelson, New Zealand, recently wrote about his 6-year-old son
`giving the finger to another boy who'd stuck his tongue out in a supermarket parking lot.
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`When asked about it, Bloomberg said he wasn't worried.
`
`"The kid who poked out his tongue at my son was just delivering the kiddies version of the finger anyway,"
`Bloomberg said. "So he probably deserved to get the real McCoy fired back at him."
`
`In the end, even some people who use the bird a lot hope it stays rude and crude.
`
`That includes The Amazing Johnathan, a comedian who regularly flips off his audiences. Earlier this month,
`he hosted a media event at a Las Vegas hotel complete with a giant middle-finger ice sculpture. He seemed
`pleased that its presence made hotel officials squirm a little.
`
`"Whenever people get used to it," he says, "then it won't be fun to do anymore."
`
`Caption: Matt Patterson, who co-wrote "The Finger: A Comprehensive Guide to Flipping Off" poses Tuesday
`with the book in his apartment in Los Angeles.
`
`Copyright Columbian Publishing Company Feb 26, 2003
`
`---- INDEX REFERENCES ---
`
`INDUSTRY: (Entertainment (1EN08); Gen Y Entertainment (1GE14); Celebrities (1CE65); Gen Y TV
`(1GE33))
`
`REGION: (USA (1US73); Americas (1AM92); North America (1NO39); New York (1NE72); California
`(1CA98))
`
`Language: EN
`
`OTHER INDEXING: (AMAZING JOHNATHAN; COMPREHENSIVE GUIDE; MTV; NATIONAL INSTI-
`TUTE ON MEDIA; TV) (Bloomberg; Britney Spears; Cameron Diaz; Caption: Matt Patterson; David Walsh;
`Indiana Pacers; Jeremy Shockey; Kremp; Laura Kremp; Matt Meyers; Matt Patterson; Ron Artest; Savage; Shar-
`on; Simon Bloomberg; Spears; Star)
`
`Word Count: 1000
`2/26/03 COLUMBIAWA 4
`END OF DOCUMENT
`
`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`
`
`EXHIBIT BEXHIBIT B
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`
`
`EXHIBIT B
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`

`
`Digitus Impudicus:
`The Middle Finger and the Law
`
`Ira P. Robbins*
`
`The middle finger is one of the most common insulting gestures in the
`United States. The finger, which is used to convey a wide range of
`emotions, is visible on streets and highways, in schools, shopping malls,
`and sporting events, in courts and execution chambers, in advertisements
`and on magazine covers, and even on the hallowed floors of legislatures.
`Despite its ubiquity, however, a number of recent cases demonstrate that
`those who use the middle finger in public run the risk of being stopped,
`arrested, prosecuted, fined, and even incarcerated under disorderly
`conduct or breach-of-peace statutes and ordinances.
`This Article argues that, although most convictions are ultimately
`overturned on appeal, the pursuit of criminal sanctions for use of the
`middle finger infringes on First Amendment rights, violates fundamental
`principles of criminal justice, wastes valuable judicial resources, and
`defies good sense. Indeed, the U.S. Supreme Court has consistently held
`that speech may not be prohibited simply because some may find it
`offensive. Criminal law generally aims to protect persons, property, or the
`state from serious harm. But use of the middle finger simply does not
`raise these concerns in most situations, with schools and courts as the
`exceptions.
`
`
`
`
`
`* Barnard T. Welsh Scholar and Professor of Law and Justice, American
`University, Washington College of Law. J.D., Harvard University; A.B., University of
`Pennsylvania. The author is grateful to Anuja Athani, Sima Bhakta, Molly Bruder,
`Chen Dai, Douglas Fischer, Jessica Gold, Erica Harvey, Eugene Ho, Lonnie Klein,
`Margaret S. Moore, Kate Rakoczy, and Alisa Tschorke for their excellent research
`assistance, and to the American University Law School Research Fund for providing
`financial support.
`While the UC Davis Law Review’s Usage, Style, & Citation Manual (rev. 5th ed.
`2007) does not permit the use of articles in parenthetical explanations, see id. at 7, the
`Editors of the UC Davis Law Review made an exception to accommodate the jargon
`and nomenclature necessary to this Article.
`
`1403
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`

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`1404
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`University of California, Davis
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`[Vol. 41:1403
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`TABLE OF CONTENTS
`INTRODUCTION ................................................................................. 1405
`I. BACKGROUND......................................................................... 1413
`
`
`A. The Origin of the Middle Finger Gesture.......................... 1413
`
`B. The Middle Finger and Other Insulting Gestures Around
`the World ........................................................................ 1417
`II. THE MIDDLE FINGER AND THE FIRST AMENDMENT................. 1422
`A. The Fighting Finger: Why the Middle Finger Gesture Is
`Not a Fighting Word........................................................ 1425
`B. Of Sex and Social Value: Why the Middle Finger Is Not
`Legally Obscene............................................................... 1430
`C. Profane and Offensive Speech .......................................... 1436
`
`Indecency: The D.I. on T.V. ............................................ 1438
`D.
`
` III. COPS, CLASSROOMS, AND COURTS: SHOULD IT MATTER
`WHERE THE GESTURE IS USED OR TO WHOM IT IS DIRECTED?.. 1451
`A. A Matter of Discretion: The Middle Finger and Law
`Enforcement .................................................................... 1451
`B. The Middle Finger at School ............................................ 1466
`
`C. The Middle Finger in Court ............................................. 1476
`
`CONCLUSION..................................................................................... 1483
`
`
`
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`

`
`2008]
`
`Digitus Impudicus
`
`1405
`
`It seems like such an . . . arbitrary, ridiculous thing to just pick a finger
`and you show it to the person. It’s a finger, what does it mean? Someone
`shows me one of their fingers and I’m supposed to feel bad. Is that the way
`it’s supposed to work? I mean, you could just give someone the toe, really,
`couldn’t you? I would feel worse if I got the toe, than if I got the finger.
`’Cause it’s not easy to give someone the toe . . . .1
`
`[I]n public debate our own citizens must tolerate insulting, and even
`outrageous, speech in order to provide adequate breathing space to the
`freedoms protected by the First Amendment.2
`
`One of the prerogatives of American citizenship is the right to criticize
`public men and measures — and that means not only informed and
`responsible criticism but the freedom to speak foolishly and without
`moderation.3
`
`These days, “the bird” is flying everywhere.4
`
`INTRODUCTION
`Robert Lee Coggin experienced fifteen minutes of fame5 in 2003
`when he “allegedly gestured with his raised middle finger . . . or ‘shot
`the bird’” as he passed a motorist on a Texas highway.6 Convicted of
`disorderly conduct and fined $250, during the next year Coggin
`successfully challenged his conviction, despite incurring nearly
`$15,000 in legal defense fees.7 Although a Texas appellate court
`ultimately acquitted Coggin, it left open the possibility that motorists
`
`
`
`1 Seinfeld: The Robbery (NBC television broadcast June 7, 1990), available at
`http://www.seinfeldscripts.com/TheRobbery.htm.
`2 Schenck v. Pro-Choice Network, 519 U.S. 357, 383 (1997) (quoting Boos v.
`
`Barry, 485 U.S. 312, 322 (1988) (internal quotation marks omitted)).
`3 Baumgartner v. United States, 322 U.S. 665, 673-74 (1944).
`
`4 Coggin v. Texas, 123 S.W.3d 82, 90 n.3 (Tex. App. 2003) (quoting Martha
`
`Irvine, Is Middle Finger Losing Its Shock Value?, COLUMBIAN (Vancouver, Wash.), Feb.
`26, 2003, available at 2003 WLNR 6826562).
`5 Newspapers throughout the country covered Coggin’s conviction. See, e.g.,
`
`Thom Marshall, ‘Shooting the Bird’ Rude, Crude but Legal, HOUSTON CHRON., Oct. 15,
`2003, at A29; Jeffrey Miller, Off the Record: The Digitus Impudicus as Free Expression,
`LAW. WKLY., Oct. 31, 2003; The Reading File: Really Free Speech, N.Y. TIMES, Oct. 19,
`2003, § 4, at 2.
`6 Coggin, 123 S.W.3d at 85.
`
`7 Marshall, supra note 5. Coggin later stated that he “felt exonerated and [did
`
`not] regret spending the money.” Id.
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`could be prosecuted for using the middle finger gesture under Texas
`law if the gesture accompanied “‘road rage’ or reckless driving.”8
`After making an “internationally recognized obscene gesture” in a
`photograph taken by Brazilian immigration officials, an American
`Airlines pilot arriving from Miami was arrested, taken to federal court,
`and fined.9 Apparently the pilot’s gesture was designed to protest a
`new Brazilian regulation requiring all incoming U.S. visitors to be
`fingerprinted and photographed.10
`At the conclusion of a sentencing hearing, as he was being shackled
`and handcuffed by prison guards, criminal defendant Timothy
`Mitchell turned to the sentencing judge, raised his hands, and gave the
`middle finger gesture to the judge.11 The outraged judge held Mitchell
`in contempt and sentenced him to five years in prison, with the
`sentence to run consecutively with the fifteen-year sentence for felony
`theft he had just received.12 Two weeks later, the judge reduced
`Mitchell’s contempt sentence to