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Tuesday, December 11, 2007


I have not visited the community of Scranton, Pennsylvania since I passed through the “The Electric City” in the summer of 1971, and yet the police department of Scranton has recently offended me. This is sad because Scranton can not afford to be offending anybody. Every decade since 1930, when it had 143,000 citizens, the population of this town on the Eastern edge of the “Rust Belt” has shrunk, until today there are little more then 72,000 residents in a town the Washington Post described as “awfuler” (than neighboring Wilke-Barre, which The Post called “awful”). You wouldn’t think the Scranton Chamber of Commerce would be encouraging any more bad publicity and yet that is exactly what the Scranton Police Department has delivered right to the front door of Lakawanna county Court Magistrate Terrence V. Gallagher. And appropriately enough this load of “crap” was brought on by a backed up toilet.
924 Lucerne Avenue in Scranton is a corner lot bordering Aswell Court. Living there at about 8pm on the evening of Thursday, October 11th of this year was 34 year old Dawn Herb, a single mother of four children. That night she was struggling with a backed up toilet in a second floor bathroom. And when the damn thing began spewing fouled water and soiled toilet paper all over the small bathroom, down the hall and through the ceiling of her kitchen, Dawn responded with a series of loud oaths and curses, all directed at the toilet and at urging her daughter to respond with a mop and bucket; but which also carried out an open bathroom window and across the street, where they were heard by 12 year old Sydney Gilman who was letting her dog in. This young lady dutifully told her father, Patrick Gilman, that there might be a fight going on and he went out to investigate.
What he heard, he later testified, was a woman shout, “Are you fucking retarded? Get me a fucking mop!” In response Mr. Gilman might have been solicitous of his neighbor’s crises. But instead he says he yelled, “Watch your mouth! There are young children in this neighborhood!” Mr. Gilman says Dawn then shouted back, “Shut the fuck up!” However Dawn says he told her to “Shut the fuck up!” and she responded by telling him to “Mind your own business.” But whatever the particulars, Dawn was clearly exasperated and Mr. Gilman was clearly offended. Under normal circumstances he would have called the cops, who would have shown up, cautioned her to be quieter and asked him to be more understanding, or, if he insisted, Mr. Gilman might have sworn out a complaint, and that would likely have been the end of it. It happens a thousand times every night in neighborhoods all over America. But these were not normal circumstances because Patrick Gilman is a Scranton police officer. Officer Gilman was off duty at the time, but when a cop calls a cop, they respond.
Specifically, Officer Gilman called on-duty Scranton officer Gerald Tallo, directly. He recorded Officer Gilman’s complaints and then wrote out a citation for Dawn Herb, charging her with disorderly conduct, which in Pennsylvania can be obscene language or gestures which “causes public inconvenience, annoyance or alarm”. Her punishment could be 90 days in jail and a $300 fine.
The words Dawn admitted uttering have ancient and honorable origins and uses. One of the Christian-Judeo names for Satan, Beelzebub, is, in fact, an ancient Hebrew insult. Beel was the primary Philistine god and Beelzebub translates as “Beel eats shit”. Clearly that oath was designed to cause public inconvenience, annoyance or alarm amongst the Phoenician cities the Israelites coveted. But the Hebrew’s had it easy in the oath department because they had seven or eight names for their one God, most of which involved avoiding saying his “real” name, “Yahweh”, which would later be mistranslated as “Jehovah”. And, as Monty Python so artfully explained, using Jehovah's name (taking it in vain) in various forms, has always been a punishable offense.
The Puritans we call the Pilgrim Fathers dealt with the same threats to their social structure that Officer Gilman deals with in 21st century Scranton. In 1637 two men, John Alexander and Thomas Roberts, were convicted of homosexual acts and were hanged. The next year Alice Bishop was hanged for the murder of her own 4 year old daughter. Thomas Granger was sent to the gallows for engaging in sex with livestock, and so were the livestock – which seems a redundant punishment for them. But cursing God was so common an offense amongst the punishment-happy Puritans that they merely sent the convicted to the stocks for three hours or so. It makes me wonder how many Pilgrim "Dawn Herbs" or "Larry Craigs" willingly took to the stocks to avoid the more serious charge of “denying the scriptures”, which was punishable by a whipping.
But this Dawn Herb was not going to slip her head into the stocks quietly. (I begin to doubt that Dawn ever did anything quietly in her life!) That very night she composed a letter to The Scranton Times- Tribune“I was fighting with my overflowing toilet tonight, with a plunger and a mouthful of words…There was no criminal intent to do anything….I don’t even have a criminal record and I don’t want (one)… for this stupid incident.” The Times-Tribune wrote it up as a story and shortly there after the Washington Post awarded the Scranton P.D. “The Joe Friday Award for Overzealous Police Work.” The Associated Press picked up the story and that brought Dawn to the attention of the American Civil Liberty Union.
Valarie Burch, and ACLU attorney based in Harrisburg said the ACLU gets “about one of these cases a year. It is simply unconstitutional for the government to criminalize the use of curse words.” And Mary Roper, another ACLU attorney called the case, “…an extreme example of the government trying to intrude into a place they have no business being, your bathroom and your home.” And Barry Dyller, who volunteered to defend Dawn, suggested “Even if you assume every fact…is true, its still not a crime to curse. All we need to do is say, ‘So what?”.
And in front of Judge Gallagher on December 10th, that is pretty much what Mr. Dyller did. He questioned Officer Gilman on cross as to why he had called Officer Tallo direct, rather than dial 911, but basically the defense case was presented in closing argument. “There was nothing sexual about the words coming out of Dawn Herb’s mouth”, which meant, Dyller argued, they were not “obscene” and thus not subject to government intervention. “We’re allowed to swear at each other," he added. "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.”
Judge Gallagher said he would issue his judgment in two or three weeks, but actually, within 48 hours he issued his decision. He wrote that Dawn's choice of words might be "offensive, vulgar and imprudent ..." they were also "protected by the First Amendment. Meanwhile A Times-Tribune poll found that 85% of readers thought the charges should be simply dropped. Dawn Herb told the reporters before the hearing, “Just hopefully this is the first and the last time I have to come in here. Hopefully it doesn’t get extended, or, I hope the charges just get dropped. That’s all I’m looking for.”
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