法律英语：104 Flipping the Bird

 Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful¹ Life. I’m your host, Adam Freedman.

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.    
Today’s episode: Flipping² the bird – free speech or not?

 
Tim has sent me an urgent email from … actually, Tim won’t tell me where he’s from, but here’s what he says:
 
“I was thinking of selling some T-shirts to express our feelings on a ruling by a certain city council. It’s all in fun but I sure don't wan’t to be sued!! Can you give me an idea of what I might expect?”
 
Attached to the email is a picture of the T-shirt in question – it says, “Hey, Exampletown City Council,” and below that, has a picture of a fist with the middle finger extended upward.
 
Now, I’m assuming that Exampletown is a pseudonym³ – like Anytown, USA – meant to protect Tim’s identity. But if it’s a real place can you let me know where that is? Is it close to Sampleville or maybe Paradigm⁴ City?
 
Tim, the quick answer is that messages on T-shirts are entitled to First Amendment⁵ protections. That means people generally cannot be arrested simply for wearing your T-shirts in public, unless the circumstances suggest that the shirt’s message constitutes “obscenity” or a provocation⁶ to violence.

The First Amendment to the Constitution states that “Congress shall make no law … abridging⁷ the freedom of speech.” This noble phrase raises the question of what constitutes “speech?”

 
Speech Need Not be Spoken
 
Over the years, courts have interpreted the word “speech” in the Constitution very broadly indeed. Speech encompasses⁸ not only spoken and written words, but also non-verbal behavior. The Supreme⁹ Court has even held that dancing is “speech” within the meaning of the First Amendment (intended, in the words of the Court, to convey a message of “eroticism”). But there are limits – courts have rejected arguments that smoking cigarettes, riding motorcycles, and wearing baggy¹⁰ trousers are protected by the First Amendment. And yes, all of those arguments were seriously made in federal court.
 
Extra Protection for “Political Speech”
 
The good news for Tim is that “political speech” usually gets a heightened level of protection under the First Amendment. In New York Times v Sullivan, the Supreme Court observed that protection of political speech – and in particular, the ability to criticize public officials – is at the core of the First Amendment. And political speech clearly includes non-verbal gestures. In the landmark¹¹ case of Tinker v. Des Moines, the Supreme Court held that students had a First Amendment right to wear black armbands to protest the Vietnam War.
 
And so, assuming that Tim’s shirts reflect a genuine political message to the powers-that-be in, er, Exampletown, they would clearly be protected by the First Amendment. The major exceptions to this protection are obscenity and a doctrine¹² known as “fighting words.”
 
The Obscenity Exception
 
The government does have greater latitude¹³ to suppress “obscene” speech, but what’s “obscene.” Personally, I can’t define it, but I know it when I see it. Under current Supreme Court precedent¹⁴, the word “obscene” refers to material that appeals to the prurient¹⁵ interest, depicts¹⁶ or describes sexual conduct in a way that is patently offensive, and lacks serious literary, artistic¹⁷, or scientific value.[1]
 
Political speech is usually not considered obscene. In Cohen v. California, another Vietnam era case, a young man named Paul Cohen was arrested for wearing inside a courthouse a jacket on which he had written “F- the draft” (except that he spelled out the entire F-word). In overturning Cohen’s conviction, the Supreme Court stated that “It cannot plausibly¹⁸ be maintained” that the words on his jacket convey any erotic message that would meet the definition of “obscenity.”
 
Them’s Fightin’ Words
 
Under the doctrine of “fighting words” a person may be arrested for a “breach of the peace” if his or her words are spoken directly to a person and are likely to provoke violent retaliation¹⁹. Whether the one-fingered salute²⁰ can constitute “fighting words” has been the subject of various court cases. Unfortunately, the results haven’t been consistent. In 2000, a federal court in Arkansas held that flipping the bird to a police officer was protected speech and did not constitute “fighting words.”[2] However, on January 13, 2009, a federal court in Maine held that the First Amendment did not protect a man who was arrested for “disorderly conduct” for making the same gesture toward two game wardens²¹.[3]
 
Neither of these cases, however, involved a mere²² picture of an extended middle finger. Whether Tim’s T-shirts are sufficiently²³ inflammatory to drive men to violence would depend upon the situation on the mean streets of Exampletown.
 
School for Scandal
 
The State may be able to impose limitations on expression in certain other limited contexts. Under the Tinker v. Des Moines case I mentioned a minute ago, school officials could prohibit, say, the wearing of a provocative²⁴ T-shirt if they have reasonable grounds to believe that the shirt would “substantially and materially disrupt the educational process.”
 
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1 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

2 flipping   

讨厌之极的

参考例句：

• I hate this flipping hotel! 我讨厌这个该死的旅馆！
• Don't go flipping your lid. 别发火。

3 pseudonym   

n.假名，笔名

参考例句：

• Eric Blair wrote under the pseudonym of George Orwell.埃里克·布莱尔用乔治·奧威尔这个笔名写作。
• Both plays were published under the pseudonym of Philip Dayre.两个剧本都是以菲利普·戴尔的笔名出版的。

4 paradigm   

n.例子，模范，词形变化表

参考例句：

• He had become the paradigm of the successful man. 他已经成为成功人士的典范。
• Moreover,the results of this research can be the new learning paradigm for digital design studios.除此之外，本研究的研究成果也可以为数位设计课程建立一个新的学习范例。

5 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

6 provocation   

n.激怒，刺激，挑拨，挑衅的事物，激怒的原因

参考例句：

• He's got a fiery temper and flares up at the slightest provocation.他是火爆性子，一点就着。
• They did not react to this provocation.他们对这一挑衅未作反应。

7 abridging   

节略( abridge的现在分词 )； 减少； 缩短； 剥夺（某人的）权利（或特权等）

参考例句：

• He's currently abridging his book. 他正在对他的书进行删节。
• First Amendment: "Congress shall make no law abridging the freedom of speech." （美国宪法）第一修正案规定议会不应该通过减损（公民）言论自由的法律。

8 encompasses   

v.围绕( encompass的第三人称单数 )；包围；包含；包括

参考例句：

• The job encompasses a wide range of responsibilities. 这项工作涉及的职责范围很广。
• Its conservation law encompasses both its magnitude and its direction. 它的守恒定律包括大小和方向两方面。 来自辞典例句

9 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

10 baggy   

adj.膨胀如袋的，宽松下垂的

参考例句：

• My T-shirt went all baggy in the wash.我的T恤越洗越大了。
• Baggy pants are meant to be stylish,not offensive.松松垮垮的裤子意味着时髦，而不是无礼。

11 landmark   

n.陆标，划时代的事，地界标

参考例句：

• The Russian Revolution represents a landmark in world history.俄国革命是世界历史上的一个里程碑。
• The tower was once a landmark for ships.这座塔曾是船只的陆标。

12 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

13 latitude   

n.纬度，行动或言论的自由(范围)，(pl.)地区

参考例句：

• The latitude of the island is 20 degrees south.该岛的纬度是南纬20度。
• The two cities are at approximately the same latitude.这两个城市差不多位于同一纬度上。

14 precedent   

n.先例，前例；惯例；adj.在前的，在先的

参考例句：

• Is there a precedent for what you want me to do?你要我做的事有前例可援吗？
• This is a wonderful achievement without precedent in Chinese history.这是中国历史上亘古未有的奇绩。

15 prurient   

adj.好色的，淫乱的

参考例句：

• She showed a prurient interest in the details of the rape case.她对那强奸案的细节津津乐道。
• We read the gossip written about them with prurient interest.我们翻看他们的八卦时带着不洁的想法。

16 depicts   

描绘，描画( depict的第三人称单数 )； 描述

参考例句：

• The book vividly depicts French society of the 1930s. 这本书生动地描绘了20 世纪30 年代的法国社会。
• He depicts the sordid and vulgar sides of life exclusively. 他只描写人生肮脏和庸俗的一面。

17 artistic   

adj.艺术(家)的，美术(家)的；善于艺术创作的

参考例句：

• The picture on this screen is a good artistic work.这屏风上的画是件很好的艺术品。
• These artistic handicrafts are very popular with foreign friends.外国朋友很喜欢这些美术工艺品。

18 plausibly   

似真地

参考例句：

• The case was presented very plausibly. 案情的申述似很可信。
• He argued very plausibly for its acceptance. 他为使之认可辩解得头头是道。

19 retaliation   

n.报复，反击

参考例句：

• retaliation against UN workers 对联合国工作人员的报复
• He never said a single word in retaliation. 他从未说过一句反击的话。 来自《简明英汉词典》

20 salute   

vi.行礼，致意，问候，放礼炮；vt.向…致意，迎接，赞扬；n.招呼，敬礼，礼炮

参考例句：

• Merchant ships salute each other by dipping the flag.商船互相点旗致敬。
• The Japanese women salute the people with formal bows in welcome.这些日本妇女以正式的鞠躬向人们施礼以示欢迎。

21 wardens   

n.看守人( warden的名词复数 )；管理员；监察员；监察官

参考例句：

• Air raid wardens in tin hats self-importantly stalked the streets. 空袭民防队员戴着钢盔神气活现地走在街上昂首阔步。 来自辞典例句
• The game wardens tranquillized the rhinoceros with a drugged dart. 猎物保护区管理员用麻醉射器让犀牛静了下来。 来自辞典例句

22 mere   

adj.纯粹的；仅仅，只不过

参考例句：

• That is a mere repetition of what you said before.那不过是重复了你以前讲的话。
• It's a mere waste of time waiting any longer.再等下去纯粹是浪费时间。

23 sufficiently   

adv.足够地，充分地

参考例句：

• It turned out he had not insured the house sufficiently.原来他没有给房屋投足保险。
• The new policy was sufficiently elastic to accommodate both views.新政策充分灵活地适用两种观点。

24 provocative   

adj.挑衅的，煽动的，刺激的，挑逗的

参考例句：

• She wore a very provocative dress.她穿了一件非常性感的裙子。
• His provocative words only fueled the argument further.他的挑衅性讲话只能使争论进一步激化。