Flipping a comb may not be the most polite gesture, but it is protected by the right to free speech, at least in Canada. A Quebec judge has ruled that making the gesture is a “right given by God” and the country’s constitution. No more no less.
“To make it very clear, it is not a crime to give someone a comb,” said Judge Dennis Galiatsatos in the ruling dated February 24, in which he dismissed a case against a man accused of harassing his neighbor in a suburb. from Montréal. “To make a comb is a God-given right enshrined in the charter that belongs to all red-blooded Canadians,” he adds, referring to Canada’s constitution.
The defendant, Neall Epstein, a 45-year-old teacher and father of two, was arrested by police in May 2021 for threatening and taunting his neighbor in Beaconsfield, Quebec. Earlier that day, he had run into Michael Naccache, 34, with whom he had had previous conflicts. According to the 26-page brief in which the judge argues his decision, Naccache cursed Epstein and threatened him while he was holding a power tool “in a threatening manner.” Epstein responded with a two-handed comb and kept walking. Hours later, he was arrested.
Naccache, who was in trouble with the entire neighborhood, alleged that Epstein also put his finger down his throat and said he feared he would come back and try to kill him, claims the judge did not uphold. “On what basis did you fear that Mr. Epstein was a potential murderer? The fact that he went for a leisurely walk with his children? The fact that he socialized with other young parents on the street? If that is the standard, we should all fear that our neighbors are potential murderers,” Galiatsatos wrote.
In conclusion, “it may not be civil, it may not be courteous, it may not be chivalrous…however, it does not create criminal liability.” “The court is inclined to take the file and throw it out the window,” settles the judge. And he adds: “What a pity, the Montreal courtrooms have no windows.”
The matter of the combs is controversial and the North American courts have issued diverse sentences. There have been cases in which the gesture has led to fines and even prison terms, such as the more than 600 dollars and six days of confinement that it cost the assistant to a murder trial to raise the middle finger to a prosecutor in Florida in 2011 An 18-year-old girl paid a much higher price for her audacity during a trial against her in 2013 for possession of Xanax. In a fit of cockiness, the young woman from Miami thought it was a good idea to show the famous finger to the judge, an act for which she was immediately fined $10,000 (“Are you serious?” Penelope Soto alleged without much success) and 30 days behind bars.
Other sentences go in the opposite direction. In 2016, a Pennsylvania appeals court concluded that combing your ex-wife was not a crime and overturned a previous conviction for disorderly conduct for a man who made the obscene gesture at his ex-partner when he left the children with her. In another similar ruling, a US federal court said the gesture was protected by the constitutional right to free speech in a case involving a Michigan woman who claimed she received an unfair traffic ticket for combing the officer.
In a study on the behavior of justice before the combs, the professor of law at the American University of Washington Ira Robbinson explains that those who use the gesture in public “run the risk of being stopped, arrested, prosecuted, fined and even imprisoned”. . However, most convictions are overturned in appellate courts because “criminal penalties for the use of the middle finger infringe First Amendment rights, violate fundamental principles of criminal justice, waste valuable judicial resources, and challenge common sense,” he says. In fact, the US Supreme Court has held that the fact that someone feels offended is not a reason for a ban. “Criminal law generally aims to protect people, property or the state from serious harm, but the use of the middle finger simply does not raise these concerns,” he concludes, agreeing with Judge Naccache.
