How Do You Solve the Problem of Scalia?
The razor-thin line between obscenity and bad judgment.
Leave it to Justice Antonin Scalia to trigger a nationwide debate about the hermeneutics of chin flips.
But first, a brief glance at the procedural history: It's undisputed that a newspaper reporter approached Scalia as he left a special Red Mass for lawyers and politicians at Boston's Cathedral of the Holy Cross. It's also not disputed that when the reporter, Laurel Sweet, asked what Scalia had to say to critics who question his impartiality in light of his Roman Catholic beliefs, he offered a familiar hand gesture, adding, "You know what I say to those people?" and, evidently by way of explanation, "That's Sicilian."
Where the parties differ is regarding the meaning of the gesture in question. The Boston Herald initially characterized it as "obscene." Supreme Court spokeswoman Kathy Arberg carefully described it, by contrast, as "a hand off the chin gesture that was meant to be dismissive," but not obscene.
The lower courts immediately issued conflicting opinions: Evidently in some jurisdictions, the chin flick "is a gesture of contempt, somewhat less rude than giving a person 'the finger.' When used in the United States, it usually means 'Bug off, I've had enough of you.' Not a polite gesture, but not a particularly hostile one, either," according to one blog. A concurrence by Wonkette (complete with an illustrated appendix) reached a similarly benign conclusion: "Justice Scalia's gesture wasn't a full-fledged flipping of the proverbial bird. But it still wasn't exactly the most polite of actions; in some quarters, it could be interpreted as pretty darn close to giving someone the middle finger." Dissenters disagreed, finding that the gesture, whether chin flip, finger, or otherwise, is improper. The "thought of flipping somebody off in church, minutes after receiving the Eucharist, is just, well, beyond shocking, insulting, infuriating."
The issue might have died there—with a largely amused nation in good-natured agreement that the equivocal gesture was par for the course for Scalia's usual belligerence and bombast—were it not for his interlocutory appeal, filed yesterday with the Boston Herald. In a surprising (though not unprecedented) letter to the editor, Scalia disputes the finding that the alleged gesture was "obscene." Dismissing the reporter as "an up-and-coming 'gotcha' star" (and inserting some trademark Scalia wordplay involving her name—"o-so-sweetly") the justice clarified that the gesture was limited to "fanning the fingers of my right hand under my chin."
Fanning. Not flipping. Please take note of the significant legal distinction.
Scalia goes on to cite Luigi Barzini's book The Italians (query whether this constitutes the citation of foreign law) and pleads that "The extended fingers of one hand moving slowly back and forth under the raised chin means: 'I couldn't care less. It's no business of mine. Count me out.' This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi."
Scalia goes on to accuse Sweet of leaping to ethnic-slur conclusions: "From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene—especially when made by an 'Italian jurist.' " This in turn led to the Herald's decision to empanel a grand jury of Sopranos actors in order to shed further light on the meaning of the hand flip in question. Again, however, unanimity was impossible to achieve: "It's an obscenity," Joseph Gannascoli, who plays capo Vito Spatafore, opined. "It's not like grabbing your crotch, not that bad an obscenity. … But it's an obscenity. It's something you would do after paying a bookie, to your bookie, but not something you would do in church."
Not so, said John Fiore, who played Sopranos capo Gigi Cestone. "It's not that bad, but I wouldn't do it to my mother. No way. Would I do it in church? These days, maybe. It depends if the priest was giving me the hairy eyeball." Black's Law Dictionary contains no definition of "the hairy eyeball," nor does Title 18 of the U.S. Code.
Concurring in Fiore's result, but offering a separate opinion, was Steve Schirripa, who plays Bobby "Bacala" Baccalieri: "Ah, I think he meant 'to hell with ya.' " Frank Santorelli, who plays Bada Bing bartender Georgie, joined with the plurality: "It's kind of a light gesture … not a vicious one. It's not as bad as the (middle) finger."
Dahlia Lithwick writes about the courts and the law for Slate.