by Richard W. Millar, Jr.

I am sure that sometime in the gauzy haze of my childhood memories, some boy gave me “the finger.” While I don’t remember the circumstances or the perpetrator of such dastardly sign language, I do remember being somewhat embarrassed and puzzled because although I knew it was “bad,” I didn’t know what it meant. It is an odd feeling when you know you are being insulted but you don’t know what the insult means.

I didn’t know whom to ask. I couldn’t ask my brother because he was almost five years younger than I, and for all I can remember probably had not started school yet. I couldn’t ask my friends (who in that stage were all boys—girls being a complete mystery) because to do so would reveal the shallowness of my knowledge to my eternal embarrassment. In retrospect, I suspect that most of my friends would be equally “finger” knowledge deficient, although, like me, they would not have admitted it and would likely just have made up a definition on the spot. (Also, ladies are still a mystery, but I digress.)

Why didn’t I just ask my parents, you ask. Actually, if you knew my parents, you wouldn’t ask. There were certain subjects that were so out of bounds that the ubiquitous “one” would never discuss them. As in “one” does not talk about such things. My mother was the gatekeeper for inquiries of this nature, shall we say, and any questions about the “finger” would have been quashed long before my father got home.

I spent my whole childhood never knowing who “one” was, but even though “one” was singular, there seemed to be a hell of a lot of them.

Of course, in those days it never would have occurred to me that someday I would be a lawyer, vigilantly trolling court decisions for (at least my) entertainment. (It didn’t occur to my mother either, even, or perhaps particularly, after I entered law school, but again I digress.)

So I am now here to report on the intersection of freedom of speech and freedom of religion.

Via the “finger.”

And so, we go to Georgia and to the Flowery Branch campus of 12Stone Church. Pastor Jason Berry was presiding over a service with some 250 guests attending. During the service, he asked any teachers present to stand and be recognized so he could bless them and pray for a successful school year. According to the reviewing court (which is a none-too-subtle hint where things were going), about fifty-one people stood up. Fifty were teachers; one was David Justin Freeman who, I’m guessing, was not a teacher.

Mr. Freeman was in the back of the church and stood up at the same time as the teachers. He “raised his middle finger in the air and stared angrily at the pastor.” Although the pastor allegedly “felt afraid for his own safety,” he finished the prayer and concluded the service. “As people were leaving, Freeman began yelling [to no one in particular] about sending children off to the evil public school and having them raised by Satan.” In response, the music minister “turned the music up in an effort to drown him out.” In the din, Mr. Freeman left the sanctuary, but the pastor followed him out into the front lobby where he told Mr. Freeman that he should have a conversation with him rather than to shout in the middle of a church service. Mr. Freeman allowed as how Pastor Berry should be ashamed of himself and that he, Mr. Freeman, was going to leave. And leave he did.

If it ended there, I wouldn’t have a column. But Mr. Freeman was arrested, tried, and found guilty by a jury of Georgians of the infamous crime of “disorderly conduct.” The crime occurs when “one” acts in a violent or tumultuous manner toward another which, in turn, puts the “another” in reasonable fear of his safety, “life, limb, or health.” The prosecution conceded that the “finger” was not violent by itself, but contended the “behavior was tumultuous.”

Well, this deathless case ended up in the Georgia Supreme Court, which reversed Mr. Freeman’s conviction as the “behavior for which [he] was prosecuted falls outside the applicable scope of the statute as properly construed.”

As the court pointed out, giving the “finger” has a “long, if not illustrious, history dating back to ancient Greece.” In short, the “finger” without more is constitutionally protected.

I guess you could say, after all,

It was just a finger of speech.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.