Robert O'BRIEN vs. Alan BOROWSKI

Massachusetts Supreme Judicial Court SJC-10866

Middle finger salute can be part of harassment of police officer when combined with other factors.

However, the order was vacated.

"we do discern an intent to confine the meaning of harassment to either fighting words or "true threats."

"We recognize that the raising of the middle finger as a form of insult has a long, if not illustrious, history dating back to ancient Greece. See Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L.Rev. 1403, 1413 (2008). [FN9] Like its verbal counterpart, when it is used to express contempt, anger, or protest, it is a form of expression protected by the First Amendment. See, e.g., Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.1997) (passenger yelling "fuck you" and extending middle finger while passing group of protestors entitled to First Amendment protection); Duran v. Douglas, 904 F.2d 1372, 1374, 1378 (9th Cir.1990) ("obscene gesture" and profanities directed to police, while "[i]narticulate and crude," "represented an expression of disapproval toward a police officer" that "fell squarely within the protective umbrella of the First Amendment")."

"Because the judge did not make any factual findings, orally or in writing, we cannot know whether the judge made this finding as to each of the three alleged acts of harassment, and the evidence is not so strong as to permit us to infer such a finding, especially with respect to the first act committed outside the bar."  Note: Apparently Massachusetts appellate procedure does not presume the judge had a legitimate reason for making its ruling.  This varies from California's presumption of the correctness of the decision.  NEEDS FOLLOW UP.

Temp Westlaw

Briefs (all enhanced by better OCR)

SJC-10866_A_OBRIEN SJC Brief final.pdf (Better scan than from SJC)

Derived from Massachusetts SJC site:





Massachusetts court: Use of middle finger is free speech but can be real threat

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!