Pointing the finger 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 granted by God” and the country’s Constitution. No more and no less.
“To be very clear, it is not a crime to point the finger at someone”, says the judge in the sentence of last February 24 in which he dismisses a case against a man accused of harassing his neighbor in a suburb of Mont – real “To point the finger is a God-given and chartered right that belongs to all red-blooded Canadians,” he adds, referring to Canada’s Constitution.
The accused, Neall Epstein, a 45-year-old teacher and father of two, was arrested by the police in May 2021 for threatening and mocking his neighbor in Beaconsfield (Quebec). That same day he had met Michael Naccache, 34 years old, with whom he had had conflicts before. According to the 26-page brief in which the judge argues his decision, Naccache cursed Epstein and threatened him with a power tool “in a threatening manner.” Epstein responded by pointing the finger with both hands and continued walking. Hours later, he was arrested.
Naccache, who was in trouble with the entire neighborhood, alleged that Epstein also put his finger across his neck and said he feared he would come back and try to kill him, claims the judge did not accept. “On what basis did you fear that Mr. Epstein was a potential murderer? The fact that he went out for a leisurely walk with his children? The fact that he socialized with other young parents on the street? If this is the standard, we should all fear our neighbors are potential murderers,” Galiatsatos wrote.
In conclusion, “it may not be civilized, it may not be courteous, it may not be chivalrous… Nevertheless, it does not generate criminal liability”. “The court is inclined to take the file and throw it out the window”, concludes the judge. And he adds: “What a shame, the courtrooms in Montreal don’t have windows.”
There have been cases where the gesture has resulted in fines and even jail time, such as the more than $600 and six days in jail that cost the bystander at a murder trial for raising the finger of half to a prosecutor in Florida in 2011. Much more dearly paid for the boldness of an 18-year-old girl during a trial against her in 2013 for possession of Xanax. In a fit of bravado, the young woman from Miami thought it was a good idea to show the judge the famous finger, an act for which she was immediately fined $10,000 (“Is she serious?” Penelope alleged Soto without much success) and 30 days in jail.
Other sentences go in the opposite direction. In 2016, a Pennsylvania appeals court concluded that pointing the finger at your ex-wife was not a crime and overturned an earlier conviction for public disorder against a man who made the obscene gesture at his ex-partner when she left the children In another similar ruling, a US federal court held that the gesture was protected by the constitutional right to free speech in a case involving a Michigan woman who complained that she had received an unfair traffic ticket for pointed the finger at the agent.
In a study on the actions of justice in the face of this gesture, American University of Washington law professor Ira Robbinson explains that those who point the finger in public “run the risk of being detained, arrested, prosecuted, fined and, even imprisoned”. However, most convictions are overturned in appellate courts, as “criminal penalties for this act violate First Amendment rights, violate fundamental principles of criminal justice, waste resources valuable judicial decisions and defy common sense”, he says. In fact, the United States Supreme Court has held that the fact that someone is offended is not a reason to ban it. “Criminal law generally aims to protect people, property or the state from serious harm, but making this gesture simply does not raise these concerns”, concludes Judge Naccache, giving the reason.
