SCRANTON, Pa. - Dawn Herb cursed like a longshoreman on the night her toilet backed up. Whether that constitutes a crime is now in the hands of a judge.
Herb, 33, was cited for disorderly conduct after her neighbor, an off-duty Scranton police officer, called authorities to complain about her potty mouth. Herb pleaded innocent and went on trial Monday.
The mother of four doesn't deny letting loose a string of profanities, including the f-word, when her toilet overflowed Oct. 11. But her lawyer, Barry Dyller, told the judge that cursing in one's own home is not a crime.
"The laws cannot require us to speak eloquently, in good taste or an inoffensive fashion. We are allowed to speak colorfully and that is absolutely constitutionally protected," Dyller said after the hearing.
District Judge Terrence Gallagher said he will issue a decision in a few days. If convicted of the summary offense, Herb faces up to 90 days in jail.
Herb did not testify and her lawyer advised her not to speak to reporters.
Herb's neighbor, city Patrolman Patrick Gilman, testified that he was off duty and at home when his 12-year-old daughter came running into the house and told him that she had heard loud curses coming from a house down the street.
Gilman, who lives a few houses away from Herb, said he went outside to investigate, heard the profanity and yelled out to Herb to "watch your mouth." He said Herb refused to quiet down and instead cursed at him. Gilman then called a patrolman, who issued the citation.
Gilman declined to comment Monday, as did the officer who cited Herb.
In Pennsylvania, someone can be convicted of disorderly conduct for using obscene language or gestures in a way that causes "public inconvenience, annoyance or alarm."
Dyller, who is handling the case on behalf of the American Civil Liberties Union, said state and federal courts have consistently interpreted "obscene" to mean material that appeals to the "prurient" interest and depicts sex in a patently offensive way. There was nothing sexual about the words coming out of Herb's mouth, he said.
"We're allowed to swear at each other. It doesn't mean we should, but we are allowed to, and the government and the law cannot stick its nose into these private matters," he said.
The issue has arisen before in Pennsylvania. In February, the ACLU filed a lawsuit against the city of Pittsburgh and a police officer on behalf of a man who was cited with disorderly conduct for making an obscene gesture at the officer. The charge was ultimately dismissed.