Arresting Speech

5 01 2008

Few things are as frustrating as having to deal with an overflowing toilet. Now imagine if an off duty police officer overheard you swearing in your own bathroom in the midst of that frustration and tried to have you arrested because of your private tirade. Well, according to the American Civil Liberties Union, that’s what happened to a mother in Scranton, Pennsylvania.

Check out the story in the press release below.

Judge Finds Scranton Mom Who Swore at Her Overflowing Toilet Not Guilty

December 14, 2007

SCRANTON, PA – Scranton police got an earful yesterday, when a judge ruled that Dawn Herb did not violate any law by swearing in her own home. Ms. Herb was cited for disorderly conduct in October for cursing at her overflowing toilet after she was overheard by her neighbor, an off-duty Scranton police officer.

Judge Terrence V. Gallagher found Herb not guilty of violating a state law against using obscenity, ruling that although her language “may be considered by some to be offensive, vulgar and imprudent . . . such representations are protected speech pursuant to the First Amendment.”

ACLU cooperating attorney Barry Dyller, who defended Herb at her trial, said, “The Scranton police were wrong to charge her with a crime for exercising her constitutional right to express herself. In this country you have the right to let loose a few choice words, whether it is in your own home or outside of it.”

Since at least 1971, when the Supreme Court held that a man could not be prosecuted for wearing a jacket that read “Fuck the Draft” in a courthouse, the courts have upheld a person’s right to speak his or her mind, even in ways that might not be considered polite.

But on the evening of October 11, Scranton police handed Dawn Herb a disorderly conduct citation for cursing about an overflowing toilet inside her home. According to Herb’s account, when her neighbor heard her cursing near an open bathroom window, he shouted at her to “shut the fuck up.” When she told him to mind his own business, he phoned his friends at the police department. Within minutes, two police cars were parked outside Herb’s home, and she was facing up to 90 days in jail and a $300 fine. “At first, I just went inside and cried,” said Herb. “I was thinking, ‘How will I pay this fine?'” Herb’s four-year old son has worried that the police will take his mother away.

“Police do not have the legal authority to enforce etiquette,” said ACLU staff attorney Valerie Burch. “What may be profanity to some is poetry to others. Both are constitutionally protected expression and the police can’t charge people for either.”

Only in America.

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