Constitutional right to flash the middle finger?

A motorist in Pennsylvania, irate over traffic delays caused by construction, let a worker know of his displeasure with a choice hand gesture. The worker notified a nearby policeman. The motorist got a citation for disorderly conduct. The charge was eventually dismissed.

Naturally, the motorist has filed a lawsuit for malicious prosecution, arguing that he has a right of free expression that includes flippin' the bird.

The "finger gesture was not accompanied by any verbal threats, taunting or communication and was never visible to anyone other than the workers," the lawsuit states. "The gesture, albeit insulting, had no sexual meaning, did not appeal to anyone's prurient interest, and did not create a public disturbance or breach of peace."

The chief of the police department that cited Burns _ in Center Township, Beaver County _ declined comment Tuesday, saying he hadn't had a chance to discuss the case with the department's attorney.

In recent years, Pennsylvania courts have ruled that the gesture doesn't automatically constitute disorderly conduct, because it is not "obscene" as defined by the law, unless it is used in a clearly sexual context.

Naturally the AP report shifts the context from a provocation to sex. (What do they teach in J-schools anymore?) The issue isn't whether the motorist was trying to be obscene. The issue is whether he was trying to share his anger and disrespect with the construction crew. In other words, the motorist was trying to provoke a response from the workers.

In the golden days when civilization was robust and social mores were less delicate, the construction crew would have hauled the driver out of his vehicle and beaten the crap out of him. A judge would have ruled that the beating, while unfortunate, was provoked and that would provide a mitigating circumstance. Fines would be assessed to all concerned and the man would recover from his injuries, never again to flash the fickle finger at anyone.

Not a perfect system, perhaps, but preferable to the sissy litigiousness of today.

Today the motorist gets away with his insult, pays no fine, serves no jail time, and will probably be several thousand dollars richer (and his lawyer even more so) when all is said and done.

But, oh, aren't we civilized?