Driver flips the bird at undercover policeman. Discovers via ACLU, the First Amendment covers that.

The middle finger: I don’t advise road rage, but next time you’re moved to flip somebody the bird, you should know your rights to do so may be covered by the First Amendment to the U.S. Constitution, confirmed just this week by the American Civil Liberties Union – ACLU-NJ. And yes, even if the offending finger is flipped at an undercover police officer driving like a maniac.

We have word of a case in New Milford, NJ, where a Bergen County man named William Martin got a disorderly conduct summons in New Milford for – according to the ticket

“… specifically by extending his left arm out the driver’s side window and raise his left middle finger [at the officer].”

Tailgated, trapped in the parking lot: Martin was out running an errand, and noticed he was being tailgated. He tapped his brakes to signal the driver to stop following so closely. As Martin slowed to make a turn into his bank, the tailgater stopped just inches from his bumper. Shaken, Martin lowered his window and gave the offending finger. That’s when the driver followed him into the parking lot, activating his unmarked police car’s grill lights and blocking in Martin’s car. Martin:

“When I received a summons, I felt that my free speech rights were under attack for nothing more than expressing my frustration with someone whose driving had put people at risk. I’m relieved to know that the town of New Milford recognized it wasn’t worth prosecuting me for expressing my frustration.”

“Peaceful, silent gesture” (albeit rude): ACLU-NJ‘s Deputy Legal Director Jeanne LoCicero represented Martin. She says “enforcing manners rather than public safety is a poor use of police resources.” She acknowledges that it might be rude to flip off a police officer, but that doesn’t constitute a crime. It is, rather, “a peaceful, silent gesture that is protected by the First Amendment” directed to a driver who “chose to initiate and escalate an encounter instead of just ignoring it.” Who happened to be an officer.

Vindicated: Martin says he felt “powerless” when his actions were cited in the ticket, but “vindicated” when the New Milford municipal prosecutor dropped the charges. He’d been cited under a local municipal disorderly conduct ordinance that ACLU-NJ calls “so broad as to be virtually unenforceable.” It amounts to a “blanket prohibition on any behavior deemed a disturbance” and is much more punitive than state law, which requires the action be “an intentional, materially harmful disturbance.”

Over-broad local ordinances and “those damned left-wing ACLU people”: Good on New Milford for recognizing when it was brought to attention that their ordinance was not effective. I hope this means they’ll change it. In my own town, after a friend was arrested at a peaceful outdoor political event I helped organize, ACLU-NJ took my friend’s case. There, too, the local ordinance was so broad that it failed to spell out what constituted an offense, and relied almost entirely on the discretion of the police – with the risk it could be applied discriminatorily. [I may not be using the exact legal language here. I’m not a lawyer, though I live with one, who is now an ACLU-NJ board member, in part because of this case].

ACLU saw the over-broad ordinance problem immediately, having just been through this with a South Jersey town, and offered my town the more specific ordinance the other town had had to adopt. My town – sigh – was run by decision-makers who almost unanimously rejected the idea of being told anything about anything by the ACLU – “those damned left-wing ACLU people.” In fact, ACLU-NJ is neither left- nor right-wing, but rather dedicated to the rights afforded us by our Constitution. Radical as that idea may seem. And in the end, after two years in court and tens of thousands of dollars of our taxpayer dollars spent, our town adopted the very same more specific ordinance that was suggested all along. Sigh.

Be careful out there. It never hurts to keep a pocket Constitution in the glove box. And maybe an ACLU card.

PS – No, that isn’t the actual offending middle finger in question in the feature pic. Stock photo. 🙂

PPS – Reader Robin Kinlin points out “This should come with a disclaimer “unless you are black, then they will shoot you.” Good point. #BlackLivesMatter


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