Damn! That Could Get You 90 Days In PA

By Tanya Roth, Esq. on May 19, 2010 | Last updated on March 21, 2019

"#!$&." That comment can get you a $300 fine and up to 90 days in the slammer in Pennsylvania, where according to the Penn state chapter of the ACLU, the local police don't know the difference between obscenity and profanity. You don't either? Here is the most important thing to know; obscenity is not protected by the First Amendment, profanity is. That, and the fact that the government is not permitted to punish one of its citizens for lawful use of protected speech.

Justice of the Supreme Court, Potter Stewart, once made a famous comment about obscenity. In the case of Jacobellis v. Ohio, the Supreme Court addressed the right of a theater manager to run a French movie that had been banned by the state because they had deemed it obscene (remember, this was 1964). Upholding the manager's right to show the film, Justice Stewart, in his struggle to define what was obscene, gave a mental shrug and said, "I know it when I see it." According to Reuters, the problem in Pennsylvania is that the state police don't know it when they hear it.

"Unfortunately, many police departments in the commonwealth do not seem to be getting the message that swearing is not a crime," Marieke Tuthill of the ACLU of Pennsylvania, told Reuters. "The courts have repeatedly found that profanity, unlike obscenity, is protected speech."

This has clearly been a problem for potty-mouthed but otherwise upright citizens like an unnamed woman from Luzerne County, PA, who received a citation (carrying the maximum penalty of $300 and 90 days in jail) after she yelled an offensive word at a motorcyclist who swerved close to her in October of 2008. And a problem for the man who was cited for disorderly conduct and jailed after shouting a double expletive at a policeman who was writing him a parking ticket. The ACLU believes there are at least 750 people in the commonwealth each year that face disorderly conduct charges for swearing.

That's a lot of @#&? people.

The ACLU says it has successfully defended about a dozen people in profanity prosecutions. They say they will continue to defend the right of the people of Pennsylvania to use colorful language as long as the practice of writing tickets for swearing continues.

The state police did not immediately comment. Not even to ask the ACLU to back the heck off.  

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