Are rude hand gestures protected under free speech? Here’s the law in Idaho

As protests intensify in Idaho and across the country, it’s crucial to know what types of expressions are protected under the First Amendment. Provocative signs, physical gestures and chants are protected, but how far can protesters push the boundaries, especially in regards to police?

The First Amendment guarantees several protections for Americans — including freedom of speech, the press, assembly, religion, and the right to petition the government.

Vulgar expression, including giving someone the middle finger, has long been considered protected under the First Amendment. Courts have routinely ruled that offensive gestures are still legal.

So what happens if you flip off a police officer? Can you be arrested or cited? If you’re in a vehicle, can you be pulled over or given a ticket?

Giving ‘the finger’, under Federal law

There is some legal precedent for whether or not flipping off police is protected under the First Amendment.

In 2019, a federal court weighed in on that very question in the case of Debra Lee Cruise-Gulyas v. Matthew Wayne Minard. A Michigan woman was pulled over for speeding and after receiving a citation, she made an obscene gesture toward the officer as she drove away. The officer stopped her again and upgraded the citation to a more serious moving violation.

Cruise-Gulyas sued, and the Sixth Circuit Court of Appeals ruled in her favor, stating the second stop violated her constitutional rights.

The court cited the First Amendment (freedom of speech), the Fourth Amendment (protection against unlawful search and seizure), and the Fourteenth Amendment (due process and equal protection).

What about ‘flipping the bird’ in Idaho?

While Idaho falls under the jurisdiction of the Ninth Circuit — not the Sixth — legal principles established in federal appellate courts often influence other regions.

In general, courts across the country have affirmed that flipping someone off is constitutionally-protected speech.

That doesn’t mean there’s no risk. You may face other consequences outside of police action, like in the case of former contractor and cyclist Juli Briskman who was fired after she was photographed flipping off President Donald Trump’s motorcade in 2017.

Briskman’s former employer alleged she had violated the company’s social media policy on obscenity. Briskman later won a local election and a seat on the Loudoun County Board of Supervisors in 2019.

What is disorderly conduct in Idaho?

Officers may still interpret certain behaviors as disorderly conduct which would allow a citation or arrest, depending on the context. Idaho law defines disorderly conduct under Section 18-6409 of the Idaho Code. Acts include:

• Maliciously or willfully disturbing the peace through loud or offensive behavior.
• Disrupting funerals, memorial services, or burials.
• Quarreling, threatening, or fighting in public.
• Discharging a firearm without lawful reason.
• Using vulgar or profane language loudly in the presence of children.

A single hand gesture, like the middle finger, generally isn’t enough to meet that standard. But if combined with yelling, threats, or aggressive behavior, law enforcement could argue it rises to the level of a criminal offense.

A previous version of this article, which included reporting from Shaun Goodwin, was published in 2024.