PHILADELPHIA - The American Civil Liberties Union of Pennsylvania filed separate federal lawsuits today against the Pennsylvania State Police (PSP) and the Mahanoy City Police (Schuylkill County) for issuing disorderly conduct citations to two Pennsylvania residents for using profanity. The ACLU argues that profanity and profane gestures are constitutionally protected speech.
"Police should be focused on protecting public safety, not enforcing manners," said Marieke Tuthill, a legal fellow with the ACLU of Pennsylvania. "It may not be polite to swear at someone, but it's certainly not a crime."
The lawsuit against the state police involves Lona Scarpa, a Mocanaqua (Luzerne County) resident and mother of three. In October 2008, she and a friend were out walking when a motorcyclist who knew them drove past, swerving close as if to hit them, and shouted an insult. Scarpa responded by calling the motorcyclist an "asshole." That same day, she reported the incident to the Pennsylvania State Police, who serve as local law enforcement in the town. In addition to citing the motorcyclist, a state trooper mailed her a disorderly conduct citation for yelling "asshole." The citation noted that if convicted, she could face as much as ninety days in jail and a fine up to $300. Scarpa challenged her conviction before a district magistrate and won, after hiring a lawyer to defend her.
"I felt bullied and intimidated by the police, after I had called them for help," said Scarpa. "I was really surprised to get a citation for something that seemed so trivial."
In December 2008, due to snow, Mahanoy City resident Matthew Walters double-parked his car outside the pizzeria where he worked delivering pizza. When Walters noticed a police officer writing him a parking ticket, he expressed his dismay and called the officer a "fucking asshole." According to the complaint, Walters was then cited with disorderly conduct for use of obscenity, arrested and briefly jailed. He was later found not guilty by a district magistrate, after taking the day off without pay to defend himself.
Despite their illegality, disorderly conduct charges for use of profanity are common in Pennsylvania. The ACLU-PA has successfully defended about a dozen individuals against them, including most recently a Scranton woman, Dawn Herb, who swore at her clogged toilet in her home and a Pittsburgh man, David Hackbart, who flipped off a police officer in a dispute over a parking space. The Pittsburgh case, which resulted in evidence that the Pittsburgh police cited people for profanity about 200 times over a four-year period, resulted in a $50,000 settlement in fall 2009.
"Unfortunately many police departments in the commonwealth do not seem to be getting the message that swearing is not a crime," said Tuthill. "The courts have repeatedly found that profanity, unlike obscenity, is protected speech. We will continue bringing lawsuits until this illegal practice is stopped."
In February 2009, ACLU contacted the PSP about the Scarpa case. The ACLU asked that the state police implement training for all its officers around the issue of issuing citations for profanity. The PSP repeatedly denied there was a problem. Records obtained through a subsequent Right to Know Law request indicate that the state police issued over 750 citations across the state for profanity or profane gestures in a one-year period.
"Even though the ACLU of Pennsylvania sees complaints on an almost weekly basis from average citizens about being charged with a crime for swearing, we were still stunned to learn that in a recent one-year period the state police violated people's free speech rights about twice a day," said Witold Walzcak, the ACLU of Pennsylvania's legal director. "We hope this lawsuit helps teach the state police an important lesson about respecting how people choose to express themselves."
Scarpa and Walters are represented by Tuthill, Mary Catherine Roper, Valerie Burch and Witold Walczak of the ACLU of Pennsylvania. The cases are Scarpa v. Pawlowski, et al and Walters v. Zubris, both filed in US District Court, Middle District of Pennsylvania.
