Is Raising a Middle Finger Considered Disorderly Conduct in Georgia?

While the Georgia disorderly conduct statutes can be a bit murky, last year the Georgia Supreme Court made a decision regarding at least one action which might be considered disorderly conduct. The issue at hand was “flipping the bird” and the Court ruled that without additional bad behavior, showing a middle finger is protected in the same way that speech is constitutionally protected. Therefore, this particular action cannot trigger a disorderly conduct charge.

The case centered around David Freeman who was attending a service at the 12 Stones Church. At some point in the service, the Pastor asked that all teachers in the congregation stand up and allow those around them to pray for a successful school year. Freeman stood, angrily stared at the Pastor, yelled about “sending children off to the evil public schools and having them raised by Satan,” and gave the finger—whether to the Pastor, the teachers, or the entire congregation is unclear.

Freeman was charged with disorderly conduct and later convicted on the charge. His sentence was one year of probation and a $270 fine. Freeman appealed, using the argument that the Georgia disorderly statute was “vague and overbroad”, therefore unconstitutional. Freeman’s basis for calling the statute vague was the fact that it allows a conviction based on a person acting in a “tumultuous manner,” and the word “tumultuous” is not defined.

The Court found that the statute was not vague because the “average” person understands what the word tumultuous denotes. The Court also did not allow Freeman’s claim that the statute was overbroad because it captured protected speech. Although Freeman was not necessarily successful in his arguments, the court did determine that the act of raising the middle finger and glaring in an “angry” manner at someone does not constitute a “true threat” or “fighting words.” Accordingly, Freeman’s raised middle finger was constitutionally protected, and his conviction was overturned.

Georgia Disorderly Conduct Laws
Laws against disorderly conduct exist to prevent people from disturbing others in a measurable way. The most common acts which are considered disorderly conduct include disturbing the peace, inciting a riot, physical altercations, obstructing traffic, loitering (in certain areas), using extremely abusive or obscene language or making loud or unreasonable noises. More specifically, under Georgia statute:

• A person who acts violently towards another, giving that person cause to be in fear for his or her safety could be charged with disorderly conduct.
• A person who acts violently towards another, putting that person’s property in danger of damage or being destroyed could be charged with disorderly conduct.
• A person who, with no provocation, uses inciting or abusive words to another person (“fighting words”) with the intention of provoking violence or escalating a situation could be charged with disorderly conduct.
• Finally, a person who uses vulgar or obscene language (without provocation) to a child under the age of 14 could be charged with disorderly conduct.

Virtually any type of conduct which is considered disruptive to the lives or activities of others or is considered socially offensive can potentially be prosecuted as disorderly conduct. Public drunkenness is considered a separate offense from disorderly conduct—although a person who is intoxicated could certainly engage in disorderly conduct. Violation of Georgia disorderly conduct code Section 16-11-39 is a misdemeanor offense, which can result in a maximum fine of $1,000, up to one year in jail, possible probation or community service.

If you have been charged with disorderly conduct, the penalties—even though it is a misdemeanor—can be fairly severe. Because of this, it is wise to contact an experienced Georgia criminal defense attorney like Melanie Ellwanger. Melanie’s goal is to work with you to explore all your options, then obtain the very best outcome possible for you and your situation. Melanie is compassionate to your issues and will fight hard on your behalf. Contact Melanie Ellwanger at (404) 803-3105 or at melanie@hiremelaw.com.