Motorist says 'insulting' hand gesture is protected speech

By The Associated Press
03.15.06

PITTSBURGH — A motorist believes the constitutional right to free speech includes obscene hand gestures.

Thomas Burns, of New Castle, contends he was denied his First Amendment free-speech rights when he was cited for giving an obscene hand gesture to a construction worker last April, according to a federal lawsuit filed March 13 in Pittsburgh.

Burns had become frustrated with a traffic delay and made the gesture to a construction worker. The worker reported it to a police officer, who cited Burns for disorderly conduct, according to the lawsuit.

The citation was dropped, but Burns filed a lawsuit because he says he was maliciously prosecuted.

The "finger gesture was not accompanied by any verbal threats, taunting or communication and was never visible to anyone other than the workers," the lawsuit states. "The gesture, albeit insulting, had no sexual meaning, did not appeal to anyone's prurient interest, and did not create a public disturbance or breach of peace."

The chief of the police department that cited Burns — in Center Township, Beaver County — declined comment yesterday, saying he hadn't had a chance to discuss the case with the department's attorney.

In recent years, Pennsylvania courts have ruled that the gesture doesn't automatically constitute disorderly conduct, because it is not "obscene" as defined by the law, unless it is used in a clearly sexual context.