Do You Have a First Amendment Right to Flip Off the Cops?

A lawsuit filed by the Indiana ACLU says yes.


middle finger
Paulus Rusyanto/

The Indiana branch of the American Civil Liberties Union is fighting for your constitutional right to flip off the cops.

Last week the group filed a lawsuit on behalf of Mark May of Vigo County, Indiana. May was ticketed $500 for flipping off Indiana State Trooper Matt Ames while driving down a state highway last year.

According to May, Ames had "aggressively" cut him off in the attempt to pull over another vehicle. Not believing Ames' actions to be "a wise use of police resources," May did what any red-blooded patriot would do and gave the trooper the finger.

The gesture so enraged Ames that he broke off the traffic stop he was engaged in and instead pulled over May, issuing him a $500 ticket for "provocation."

Provocation is a Class C infraction in Indiana, defined as "recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery."

May challenged the ticket in Terre Haute City Court. He lost there, but he did have his conviction vacated by Vigo County Superior Court. The ACLU's suit seeks damages for the violation of his constitutional rights, and for the days of work May lost while having to appear in court.

Giving Ames the middle finger, the lawsuit claims, does not qualify as provocation and did nothing to interfere with the officer's duties. Thus, while May's gesture was "perhaps inadvisable," he was nevertheless "engaged in expressive activity fully protected" by the First Amendment to the U.S. Constitution. The lawsuit also argues that because Ames' reason for pulling May over was illegitimate, the traffic stop was both unreasonable and done without probable cause, in violation of the Fourth Amendment.

Needless to say, it's poor form to give someone the middle finger in traffic, or indeed pretty much anywhere. But cops ought to know the difference between a violation of etiquette and a violation of the law.

CORRECTION: The original version of this article referred to Matt Ames as an Iowa State Trooper. He is an Indiana State Trooper.