Does American law limit what a citizen can shout in her own home at her overflowing toilet? The answer, provided by a judge in a case in Pennsylvania, is no.

Last year, Dawn Herb, from Scranton, was cited for disorderly conduct when she was overheard swearing at her toilet as it overflowed through her home. She had been overheard by her neighbour, an off-duty police officer. He shouted at her to be quiet. Oddly, for someone who would seek to have her prosecuted for profanities, the neighbour couched his instruction in the phrase "shut the f**k up".

When Herb advised him to mind his own business, the neighbour phoned a friend and colleague at the police department. Minutes later, two police cars were parked outside Herb's home, and she was facing up to 90 days in jail and a $300 fine. Herb, a mother of four, said, "At first, I just went inside and cried". She added: "I was thinking, 'How will I pay this fine?'". Her four-year old son developed anxieties that the police would take his mother away.

A judge found her not guilty of violating a state law against obscenity. He ruled that that although her language may be considered by some to be “offensive, vulgar and imprudent”, such representations are protected speech under the First Amendment to the Constitution. Herb has now settled a civil action against the city of Scranton, and the arresting officer for $19,000.

America has a good legal tradition of not allowing the law to close down the utterance of thoughts on the sole basis that they are rude or offensive. In Cohen v California, in 1971, the Supreme Court held that the state could not convict a person simply for wearing a swearword on his clothing. Referring to the Vietnam War, Paul Cohen had been arrested in a corridor of the Los Angeles Municipal Court for wearing a jacket bearing the words “F**k the Draft”. Justice Harlan ruled there was no case in such a situation for criminalising the “scurrilous epithet”.

In 1722, James Sparling of Clerkenwell, London was convicted of profanely swearing 54 oaths and 160 curses within ten days. He was fined an absolute fortune (you can only imagine what he muttered under his breath when he heard the sentence) but his conviction was overturned because those writing the charge sheet failed to record each of the alleged offending words.

Judges have not been averse sometimes to thrust and parry with those who use vulgar language in court. In one Canadian case, a judge in Manitoba gave a defendant a longer custodial sentence than he had been expecting.

Judge: I sentence you to one year in prison.

Defendant: Well I’ll be f***ed.

Judge: Not for a year you won’t.

Professor Gary Slapper is Director of the Centre for Law at the Open University

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