Is It Illegal to Flip Off a Cop in Pennsylvania? Here’s What the Law Says

Under Pennsylvania law and federal precedent, flipping off a police officer is protected speech under the First Amendment and not inherently illegal. However, interactions may escalate depending on an officer’s discretion and context. Here’s a detailed overview:

Legal Protections for Offensive Gestures

1. First Amendment Rights:
   • Courts have consistently ruled that flipping off a cop is protected speech, even if offensive. For example:
     • Brockway v. Shepherd (Federal District Court in Pennsylvania): Flipping the bird lacks inherent sexual connotations required for obscenity charges under Pennsylvania’s disorderly conduct law.
     • Cruise-Gulyas v. Minard (6th Circuit): A driver’s middle finger directed at an officer is protected expression, and retaliatory stops violate the First Amendment.
   • The ACLU has successfully challenged citations for this gesture, such as in Hackbart v. City of Pittsburgh, where charges were dropped.
2. Disorderly Conduct Claims:
   • Pennsylvania’s disorderly conduct statute (18 Pa.C.S. § 5503) requires speech to incite “public inconvenience, annoyance, or alarm” and be obscene. Courts narrowly define “obscene” as involving sexual content, which flipping off does not.
   • Mere rudeness or frustration, even toward police, is insufficient for charges.

Risks and Practical Considerations

1. Retaliatory Enforcement:
   • While the gesture itself is legal, officers may retaliate by:
     • Issuing pretextual citations (e.g., tinted windows, expired tags).
     • Extending stops to search for other violations under Pennsylvania v. Mimms.
   • Example: A New Milford, NJ, officer cited a driver for disorderly conduct after being flipped off, but prosecutors dismissed the charge.
2. Temporary Detention:
   • Officers might detain individuals briefly, but courts have ruled such retaliatory stops unconstitutional.

Key Court Precedents

• Federal Appeals Court Ruling (6th Circuit):
  Retaliatory traffic stops for flipping off cops violate the First and Fourth Amendments. Officers cannot escalate stops solely due to hurt feelings.
• ACLU Victories:
  Multiple cases, including Hackbart and Martin, confirm that citations for flipping off officers are unconstitutional.

Recommendations

1. Know Your Rights:
   • Politely decline to engage if questioned about the gesture.
   • Record interactions if possible (Pennsylvania is a two-party consent state, so inform the officer).
2. Avoid Escalation:
   • While legal, antagonizing officers risks prolonged interaction or pretextual charges.
3. Legal Recourse:
   • If cited or arrested, challenge the charge under First Amendment grounds. Most cases are dismissed or settled.

Exceptions

• Contempt of Court: Flipping off a judge in court may result in contempt charges.
• Accompanying Threats/Conduct: Combining the gesture with threats, obstruction, or violence can lead to charges like harassment or assault.

Bottom Line: Flipping off a cop in Pennsylvania is legally protected speech, but exercise caution to avoid confrontations. If wrongfully cited, consult an attorney to assert your First Amendment rights.

Sources:

1. https://www.findlaw.com/legalblogs/criminal-defense/do-you-have-the-right-to-flip-off-cops/
2. https://www.performance-protocol.com/post/is-it-illegal-to-flip-off-a-cop-examining-the-legal-and-social-implications
3. https://www.aclu-nj.org/en/press-releases/free-speech-victory-man-who-flipped-cop-unmarked-car
4. https://www.mystatecollegelawyer.com/2015/01/is-flipping-the-bird-illegal-in-pennsylvania/
5. https://www.marcushillattorney.com/links/flipping-off-the-cops.shtml