Commonwealth v. Herb

Woman cited with disorderly conduct for swearing in her own home

Court/Assoc.: District Magistrate

Attorneys/Firms: Barry Dyller; Valerie Burch (ACLU-PA)

Scranton police charged a woman with disorderly conduct for shouting profanities at an overflowing toilet in her home. On the evening of October 11 as Dawn Herb, a single mother of four, expressed her frustration with the toilet, her neighbor, a Scranton police officer, overheard through an open window. After ordering Ms. Herb to "shut the fuck up," the off-duty cop called police who cited her for using obscene language under Pennsylvania's disorderly conduct statute. For this, Ms. Herb could receive up to 90 days jail time and a $300 fine. The ACLU of Pennsylvania is representing Ms. Herb because it stands behind the constitutionally protected principle that no one can tell a person what she can say, particularly in her own home.

Ms. Herb's hearing was December 10, 2007, in front of Judge Terrence V. Gallagher. On December 13, 2007, Judge Gallagher found Dawn 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."

In October 2008, Herb and the City of Scranton reached a settlement in which Herb received $19,000 in damages and attorneys' fees.

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