The Georgia Supreme Court ruled on October 2, 2017 that a raised middle finger, without more, amounts to constitutionally protected speech that cannot be grounds for a finding of criminal disorderly conduct.

David Freeman attended a church service at the Flowery Branch campus of the 12 Stones Church on August 3, 2014. During the service, Pastor Jason Berry asked all teachers present to stand so that the congregation could pray for them to have a good school year. Freeman, who was in the back of the church, stood up among the 50 or so teachers and gave the finger. He also stared angrily at Pastor Berry, and as the bewildered congregants exited, he yelled about “sending children off to the evil public schools and having them raised by Satan.”

Freeman was charged with disorderly conduct, found guilty, and sentenced to 12 months of probation and issued a $270 fine. He appealed the conviction, arguing that the disorderly conduct statute was facially unconstitutional because it is impermissibly vague and overbroad.

The Georgia Supreme Court rejected Freeman’s facial challenge to the disorderly conduct statute. Freeman contended that the statute was vague because it allowed a conviction based on acting in a “tumultuous manner,” and tumultuous was not defined in the statute. The Court determined that because the word “tumultuous” has a commonly understood meaning, the average person was informed about conduct prohibited by the statute.

“A person of common intelligence can ascertain from the word ‘tumultuous’ that he or she may be found guilty of disorderly conduct…when that person acts in a disorderly, turbulent, or uproarious manner towards another person, which places the other person in reasonable fear for his or her safety,” wrote the Court.

The Supreme Court also rejected Freeman’s claim that the statute was overbroad because it captured protected speech. Finding that the statute required acting toward another person in a manner “whereby such person is placed in reasonable fear of the safety of such person’s life, limb or health,” the Court ruled that it did not interfere with protected free speech, which does not protect “fighting words” or “true threats.”

However, the Court determined that Freeman’s actions of raising his middle finger and staring angrily at Pastor Berry did not constitute “fighting words” or a “true threat.” Accordingly, “Freeman’s raised middle finger constituted a constitutionally protected expression, and he could not be found guilty of disorderly conduct” under the statute. Therefore, the Georgia Supreme Court concluded “his conviction must be reversed and he cannot be re-tried on the disorderly conduct charge.” See: Freeman v. State, 2017 Ga. LEXIS 829 (2017).

Originally published in Criminal Legal News on November 16, 2017.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).