The jury is still out on whether Antonin Scalia actually made an obscene gesture in response to a question by a Boston Herald reporter last month. The reporter had asked the Supreme Court justice how he felt about criticism that he publicly takes part in Catholic services, as he was doing that day at a Eucharist Mass at Boston’s Cathedral of the Holy Cross. In response, Scalia flicked his hand under his chin. “You know what I say to those people?” Scalia reportedly asked before making his gesture. “That’s Sicilian. It’s none of their business.”

The Herald has alleged that the gesture was obscene; Scalia contends that it was innocuous. It probably depends on what neighborhood in Sicily your ancestors came from. But there can be no doubt that Scalia’s gesture is deserving of some mention in the media, if not a full-blown national controversy.

What does not deserve a controversy is the decision by Peter Smith, a freelance photographer and professor of photojournalism at Boston University, to release his picture of Scalia’s gesture to the Herald. Smith was hired by The Pilot, a newspaper published by the Boston Archdiocese, to take photos at the event. But after Smith opted to sell the photo to the Boston tabloid, the Pilot terminated its 10-year relationship with Smith.

As a freelance photographer, Smith has the rights to his photos, and he can sell them to whatever newspaper he’d like. The Herald seems to be trying to squeeze as much money out of this story as it can, but there is nothing wrong with that if the paper has a willing seller at hand.

This is not to say that the Pilot is to blame, either. If it wishes to terminate its relationship with Smith, a man who’s become closely connected with an embarrassing incident for the Catholic Church, it has every right to do so. No one expects the Pilot to be anything more than a PR machine, and it’s understandable that its editors don’t want to promote a negative view of the Church.

Smith claims that after the photo was taken, he heard Scalia ask, “You’re not going to print that, are you?” indicating that the judge’s gesture was not exactly harmless. In any event, the gesture was real and the story is real. If Smith wants to make his photo available to the public, there’s no reason why he shouldn’t be able to do so.