A Pennsylvania appeals court has overturned the disorderly conduct conviction of a man who gave his ex-wife the middle finger.

The gesture was not obscene, which would allow it to be criminalized consistent with the First Amendment, a three-judge panel found.

Jason Waugaman allegedly made the gesture after dropping off his two children in 2014. His ex-wife told police he extended the finger as he peeled out of a parking lot.

Though acquitted of reckless endangerment tied to his driving, Judge Anthony Mariani convicted him of disorderly conduct by making an obscene gesture, as his kids “may well have seen their father’s conduct in relation to their mother as explicitly sexual.”

All three Pennsylvania Superior Court appeals judges agreed this week with overturning the conviction, which the Allegheny County District Attorney’s Office did not defend.

“Although appellant’s display of his middle finger was offensive, insulting and disrespectful, the commonwealth is constrained to agree with him that it does not meet the criteria of an obscene gesture as defined by the statute and case law,” prosecutors said in a July filing.

The appeals judges said an average person – rather than the children, specifically – would have to find conduct obscene for it to be legally considered so. In a 2000 ruling, the same court found it was not obscene when a driver said "f--k you" and gave the middle finger to a state employee.

One of the judges reviewing Waugaman's conviction offered a single sentence of analysis in a concurring opinion, writing: “Unless the First Amendment was repealed when I was not looking, giving someone the finger should not constitute a crime.”

Indeed, the outcome of middle-finger cases is familiar.

American University law professor Ira Robbins says many people have been charged with disorderly conduct under similar circumstances, but that the charges either are dismissed or are overturned on appeal.

“The middle finger these days, unlike 50 years ago, is not considered obscene. It’s more an expression of anger or frustration," Robbins says.

Robbins authored a lengthy paper on middle-finger cases, and says that although it's conceivable a state judicial system would find the gesture obscene under subjective local standards, such a decision almost certainly would be reversed by the U.S. Supreme Court.

The justices likely would find local prohibitions too vague, or that middle-finger exhibitions do not meet the three-prong test for obscenity set out in Miller v. California, Robbins says.

In that 1973 decision, the Supreme Court said obscenity equates to something that appeals to the prurient interest in sex, conveys sexual conduct in an offensive way and lacks "serious literary, artistic, political or scientific value."

It's unclear if Waugaman ultimately will sue local prosecutors or the Hampton Township Police Department over the case, which yielded an initial penalty of 90 days' probation.

A fellow Pittsburgh-area resident, David Hackbart, won a $50,000 settlement in 2009 after a federal judge ruled police violated his First Amendment rights by giving him a disorderly conduct citation for showing a middle finger to a fellow driver and a policeman.

Waugaman was represented on appeal by the Allegheny County Public Defender's Office, which did not immediately respond to a request for comment.

Robbins says that although he and many judges believe there's a constitutional right to give someone a middle finger, uttering threats would be a crime, and that the crass sign still could bear consequences.

A thin-skinned policeman can still arrest you and force an inconvenient path to vindication, he says. Or a fellow driver could be armed with a weapon or swerve in spite, causing an accident.

“There’s a right to do it, but it’s not necessarily the smartest thing,” he says.