Amid a growing national controversy about the gesture U.S. Supreme Court Justice Antonin Scalia made Sunday at the Cathedral of the Holy Cross, the freelance photographer who captured the moment has come forward with the picture.

“It’s inaccurate and deceptive of him to say there was no vulgarity in the moment,” said Peter Smith, the Boston University assistant photojournalism professor who made the shot.

Despite Scalia’s insistence that the Sicilian gesture was not offensive and had been incorrectly characterized by the Herald as obscene, the photographer said the newspaper “got the story right.”

Smith said the jurist “immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’ ”

Scalia’s office yesterday referred questions regarding the flap to Supreme Court spokeswoman Kathy Arberg, who said a letter Scalia sent Tuesday to the Herald defending his gesture at the cathedral “speaks for itself.”

“He has no further comment,” Arberg said.

Smith was working as a freelance photographer for the Boston archdiocese’s weekly newspaper at a special Mass for lawyers Sunday when a Herald reporter asked the justice how he responds to critics who might question his impartiality as a judge given his public worship.

“The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ ” punctuating the comment by flicking his right hand out from under his chin, Smith said.

The Italian phrase means “(expletive) you.”

Yesterday, Herald reporter Laurel J. Sweet agreed with Smith’s account, but said she did not hear Scalia utter the obscenity.

In his letter, Scalia denied his gesture was obscene and claimed he explained its meaning to Sweet, a point both she and Smith dispute.

Scalia went on to cite Luigi Barzini’s book, “The Italians,” which describes a seemingly different gesture - “the extended fingers of one hand moving slowly back and forth under the raised chin” - and its meaning - “ ‘I couldn’t care less. It’s no business of mine. Count me out.’ ”

“How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene?” Scalia wrote.

Quite easily, according to experts, even if the justice had offered more than a two-word explanation - “That’s Sicilian” - Sunday.

“There is no answer to ‘what it really means,’ because those gestures have different meanings in different locations, even in neighbouring locations,” said Janet Bavelas, a University of Victoria, British Columbia, psychologist who has studied human gestures.

The gesture typically means “I don’t know” in Portugal, “No!” in Naples, “You are lying” in Greece and “I don’t give a damn” in northern Italy, France and Tunisia, said David B. Givens of the Center for Nonverbal Studies in Spokane, Washington.

© 2006 The Boston Herald

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