'Birdgate' addresses First Amendment right

Wednesday, February 7, 2018

Forget the Republican's FISA memo. And forget the Democrat's counter memo disputing the Republican memo.

In fact, forget any and all memos and focus instead on an Indiana courtroom where a much more important battle is brewing.

Let's call it Birdgate.

Mark May is, by most accounts, an unassuming carpet cleaner. But May managed to get on the wrong side of the law when he flipped the bird -- that ever-popular middle finger -- at an Indiana Highway Patrolman.

By way of background, May was driving along one hot August day last year when Indiana Trooper Matt Ames cut in front of May's automobile while pulling over another driver.

When the carpet cleaner pulled along side of the Trooper's vehicle, he decided to indicate his displeasure with Officer Ames' driving skills.

And with no ambiguity, he raised his middle finger in disgust and pointed the flying bird directly at the Trooper.

Well that gesture did not set well with the Trooper and May was issued a ticket for "provocation," which is defined as "a person who recklessly, knowingly or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery."

The problem --as May's ACLU attorney argues -- is the "finger" is protected by the First Amendment, according to the Supreme Court.

The attorney argues that though "perhaps ill-advised," the gesture is however not illegal.

The finger-flipper was actually found guilty in an Indiana city court but that ruling was vacated when he challenged the ticket.

So May is suing the state for lost income when he was forced to make two court appearances in his defense. And he wants the state to pay his legal fees.

Most court observers believe May will win his case against the Trooper and walk away with some pocket change for his inconvenience.

And Troopers will likely be instructed that flying birds may be rude gestures but they fall within the framework of our laws.

If a flip of the bird is protected speech, it makes you wonder what other seemingly inappropriate gestures would fall into that category.

Interestingly, the aspect of respect for law enforcement is not part of this sticky legal debate.

But then again, respect for law enforcement is no longer a high priority in our nation.

I assume Mark May will win his case and the great bird caper will vanish in legal history.

But I do hope the courts flip a bird in his direction when it comes to forking over cash for his hardship.

That would simply be poetic justice.

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