'Potty-mouth' case dismissed BY ERIN L. NISSLEY
STAFF WRITER
12/14/2007
Dawn Herb won’t have to spend up to 90 days in jail. She won’t have to pay a $300 fine.
And she can use any language she wants to celebrate.
Magisterial District Judge Terrence V. Gallagher said the 31-year-old West Scranton woman did nothing wrong when she cursed at her overflowing toilet Oct. 11, then cursed at a neighbor — an off-duty Scranton cop — who told her to watch her language.
In a decision filed late Thursday, Judge Gallagher dismissed the disorderly conduct charge filed against Ms. Herb, 924 Luzerne St. A conviction carries up to 90 days in jail and a $300 fine.
Although the language she used “may be considered by some to be offensive, vulgar and imprudent ... such representations are protected speech pursuant to the First Amendment,” the judge wrote Thursday.
At a Monday hearing on the matter, Officer Patrick Gilman said he heard someone yell, “Are you (expletive) retarded? Get me the (expletive) mop.”
Patrolman Gilman said he then yelled, “Watch your mouth,” to which the person replied “(Expletive) off.” He then called Patrolman Gerald Tallo, who was on duty at the time. Ms. Herb allegedly admitted cursing at her toilet when Officer Tallo interviewed her about the incident.
In statements to the press, Ms. Herb said her neighbor told her to “Shut the (expletive) up,” and her response was “Mind your own business.”
Initial reports in The Times-Tribune of the Oct. 11 incident quickly captured national attention through The Associated Press and other news outlets.
The American Civil Liberties Union of Pennsylvania also took an interest in the case, and asked Wilkes-Barre attorney Barry Dyller to represent Ms. Herb and the ACLU. He has declined to comment on whether he was being paid.
Mr. Dyller, contacted at home late Thursday, said Judge Gallagher made the right decision. He argued that previous cases, going back 20 years, have held that “colorful language” might be annoying or offensive, but it isn’t illegal.
“He’s exactly right ... in his reasoning,” Mr. Dyller said. “And it’s important that the public understands this. There are cases like this each year.”
Mr. Dyller said he’s discussed what options Ms. Herb could explore now that she’s acquitted, but declined to detail them Thursday.
He also said Ms. Herb was not prepared to comment on her acquittal Thursday evening.
http://www.thetimes-tribune.com/site/news.cfm?newsid=19114637&BRD=2185&PAG=461&dept_id=415898&rfi=6
