ACLU Files Lawsuits to Defend Free Speech
May 18, 2010
By Delores Amorelli, staff writer of SEOLawFirm.com’s Newsroom Column ‘In Good Practice’ – May 18, 2010
The ACLU filed a pair of lawsuits last week aimed at proving that simply using profanity, regardless of who it is aimed at, is not disorderly conduct and that the use of profanity should be protected under the First Amendment. Two Pennsylvanian residents, Lona Scarpa and Matthew Walters, claim that they were wrongly given citations for disorderly conduct when they yelled obscenities during a traffic incident. 
Walters, while working as a pizza deliveryman in December of 2008, double-parked his car outside the pizzeria where he worked due to the snow. When he noticed that a police officer was writing him a parking ticket, he called the officer what some would consider to be an obscenity.  Walters was immediately cited with disorderly conduct for his use of obscenity, was arrested and briefly jailed. A district magistrate later found him not guilty; however, he had to take the day off without pay in order to defend himself, the suit says.
Scarpa was cited by state police for calling out a derogatory name at a swerving motorcyclist who tried to run her off the road. She contacted the police to report the cyclist’s dangerous actions, but was told that the police could not pursue the investigation without charging her for the profane expressions she uttered as he sped off.  While the police did cite the motorcyclist for his reckless driving, they also cited Scarpa for her language. She contested the citation, though, and was acquitted by a district magistrate.
These cases, according to the ACLU, are not isolated incidents. Records from the Pennsylvania State Police show that over 750 citations have been given by state troopers in the last year for using profanity or profane gestures.  The ACLU has already been involved in similar cases, where they have represented individuals who have used profanity and have been charged with disorderly conduct. Most recently, the ACLU defended a Pittsburgh man, David Hackbart, who was charged when he flipped off a police officer after a dispute over a parking space.  The case actually resulted in a $50,000 settlement for Hackbart last year and is only one example of successful cases fought by the ACLU in this matter.
The rationale behind these two lawsuits is that using profanity, even when doing so in front of an officer of the law, is not by definition obscene. Profane language that is not obscene is protected by the First Amendment. Marieke Tuthill, a lawyer for the ACLU, argued, “You absolutely cannot cite someone just for uttering a profanity.”  Tuthill went on to point out that the Pennsylvania Supreme Court follows U.S. Supreme Court holdings on obscenity, which refers to speech that is more violent, graphic and sexual than the seven dirty words of George Carlin fame. 
As such, Pennsylvania courts have repeatedly ruled that profanity, and even profane gestures, are protected by the Constitution. Tuthill believes that the true problem in these instances is a lack of police training, and that the issue really boils down to “the difference between the colloquial definition of obscenity and the legal definition of obscenity.”  In essence, untrained officials are applying the law in a manner that is not consistent with the definitions set forth by the actual law and are using their personal judgment. Obscene then becomes whatever language they find offensive.
Many members of our society find cursing or using profane gestures to be offensive. Some find it even more offensive when directed toward officers of the law, individuals who make it their job to protect and defend our way of life. While this type of language may not be too easy on the ears, these words are, after all, commonly used as a means of expressing emotions. In our society, the ability to express oneself freely is a basic right, one that sets us apart from so many other countries in the world. When we start policing profanity because it leaves a bad taste in our mouths, it leaves the door open for the policing of so much more. In the end, free speech is free speech, even if you don’t agree with the profanity someone is using to express a point.