What’s a ‘digitus impudicus’

THE world’s oldest insulting gesture, flipping the bird, or giving the middle finger, dates to ancient Greece and was adopted by the Romans as digitus impudicus – the impudent finger.

A public intellectual, expressing his contempt for a gas-bag politician, reaches for a familiar gesture. He extends his middle finger and declares: “This is the great demagogue.”

The episode occurred not on a chat show nor in the salons of New York or London, but in 4th Century Athens, when the philosopher Diogenes told a group of visitors exactly what he thought about the orator Demosthenes, according to a later Greek historian.

The Romans had their own name for it: digitus impudicus – the shameless, indecent or offensive finger.

However, scholars and historians continue to debate its origins, with another claiming it was first displayed at the battle of Agincourt in 1415, although this is widely regarded as a myth. The story goes that English soldiers waved their fingers at French soldiers who had threatened to cut off captured archers’ first two fingers to prevent them shooting arrows. The English were thus boasting they were still capable of doing so.

The middle finger’s offensive meaning seems to have broken through cultural, linguistic and national boundaries and can now be seen at protests, on football pitches, and at rock concerts across the world.

In 2004, a Canadian MP from Calgary was accused of pointing his middle finger at a member from another party who he said had been heckling him in the House of Commons.

“I expressed my displeasure to him, let’s put it this way,” Deepak Obhrai told a Canadian newspaper.

While the middle finger may historically have symbolised a phallus, it has lost that distinctive meaning and is no longer even obscene, says Ira Robbins, a law professor at American University in Washington DC, who has studied the gesture’s place in criminal jurisprudence.

“It does not appeal to the prurient interests,” he says.

“This gesture is so well ingrained in everyday life in this country and others. It means so many other things, like protest or rage or excitement, it’s not just a phallus.”

The middle finger is one of the most common insulting gestures in the world. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floors of legislatures.

Last week, the Attorney General’s Chambers decided to revoke charges against me for allegedly showing my middle finger at hecklers in a forum a few years ago.

The Penal Code the police wanted to use against me was Section 509, which states:

“Word or gesture intended to insult the modesty of a person

509. Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”

Ingredients of Section 509 of the Code are:

1. Intention to insult the modesty of a person,

2. The insult —

i) Must be caused by uttering any word or making any sound or gesture or exhibiting any object intending that such word or sound shall be heard or that gesture or object shall be seen by such person; or

ii) Must be caused by intruding upon the privacy of such person.

In my humble opinion, the prosecution would have a difficult time to establish even on the first limb of the ingredient in that I intended to “insult the modesty of a person” in an audience full of men who were heckling, shouting and going for all out contemptuous behaviour towards me. My action was a reaction of contempt towards their heckling and rudeness.

Conceivably, the middle finger gesture was once understood to depict specific sexual conduct, but it’s now understood as a more general expression of contempt.

I’ve seen some attempts to compare my case with the Grab driver who was charged for showing his middle finger to the police.

While flipping a police officer the bird may be disrespectful and ill-advised, it should not, without more, be criminally punishable. Based on the nature of their work, authority figures – especially police officers –are expected to tolerate some potentially offensive speech. This exception should apply differently when words are addressed to police officers rather than to ordinary citizen, because officers are trained to exercise a higher degree of restraint.

Whatever is assumed about the reaction of the average individual to offensive words, police are employed to keep the peace rather than breach it and are assumed to be trained to remain calm in the face of citizen anger. The government therefore should not have prosecuted him for his act.

The pursuit of criminal sanctions for use of the middle finger infringes on our Constitutional Rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense.

Speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm. Use of the middle finger simply does not raise these concerns in most situations, with schools and courts as the exceptions.

Thus, the government cannot constitutionally prohibit its use, except in the limited circumstances in which such a prohibition is essential to serving the missions of our educational and judicial systems.

While targets of the gesture may find it impolite, insulting, offensive, vulgar, rude, or crude, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.

A 1969 decision of the US Supreme Court, Brandenburg v. Ohio, ruled that speech can only be made a crime if it is directed at inciting imminent lawless action and is likely to produce such action. And “speech” includes acts that are intended to convey an idea — even a rude or vulgar idea. Freedom of speech is for everyone, including people we disagree with.

The law could be in line for reform. It is time for an examination of whether this provision of Section 509 provides a “proportionate” response and a “necessary balance between the right to freedom of expression and the right of others to not be harassed, alarmed or distressed”.

This provision is being used to criminalise what many people might consider simply to be a point of view that others do not like. The obvious problem is the subjective nature of an insult. While most of us can recognise abusive language when we hear it, in what way is it a crime to take issue with someone else’s opinion, or even their rude gesture?

In a free and civilised country, people should not be abusive or gratuitously offensive to each other; but they should be entitled to voice an opinion that someone else might find insulting.

It is a hallmark of liberty that it allows a person to say something that is provocative, otherwise it is no freedom at all.

John Milton put it best: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

Even if “the bird” is flying everywhere, it is a small price to pay for the freedom of speech that our Constitution protects.

The views expressed are those of the author and do not necessarily reflect those of Sunday Star.