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Bowled over by toilet tirade ...

By Gene Policinski
First Amendment Center vice president/executive director
10.18.07

Comment? E-mail me

TOILET TIRADE: A person's home may still be his or her castle, but it remains to be decided in court if that means you get to curse loudly at the "throne" even when your moat is backing up.

Dawn Herb told The Times-Tribune of Scranton, Pa., that on Oct. 11 her toilet "was overflowing and leaking down into the kitchen and I was yelling (for my daughter) to get the mop." She isn't certain exactly which words she used — in my view, whatever she said was entirely appropriate to the situation — but apparently they were loud, offensive and disturbing enough to gain the attention through an open window of her next-door neighbor. Who happens to be a local police officer.

The off-duty officer is reported to have asked Herb to keep it down, but when curses continued to cascade over these particular battlements, he called the police and Herb was charged with disorderly conduct. Herb says she will plead not guilty.

Expressing oneself loudly in the privacy of one's home would seem to come under — well under, in fact — the protections for free speech. And beyond the legalities of whether or not some particular words may reach a prosecutorial level, a closed window on the receiving side of the fence may seem a more appropriate "First Amendment-friendly" solution than calling in government forces to regulate the tirade of a neighbor that is wafting into the open air from inside her house.

As my colleague and First Amendment Scholar David Hudson notes, profanity is protected by the First Amendment unless it crosses into a narrow category of fighting words — face-to-face personal insults that would likely provoke violence — or is uttered as part of a true threat. Time and again, courts have held that profanity is protected speech for adults in a general citizen setting.

SHIELD LAW: News organizations and long-time defenders of the First Amendment are hailing the Oct. 16 passing in the U.S. House of what could be the first federal protection for reporters wishing to keep secret their confidential sources. Those same groups and advocates are urging the U.S. Senate to act in the face of a threatened White House veto and criticism from Justice Department and agencies charged with keeping government secrets and carrying out anti-terror efforts.

There's one significant element in the proposed law that may well represent the "half-a-loaf-is-better-than-none" school of compromise and lawmaking. The Senate version of a shield law, which has received committee approval and is awaiting full chamber action, offers this expansive view of a journalist: in essence, anyone engaged in the regular dissemination of information to the public. This House-adopted bill would add a qualifier to that definition — "for a substantial portion of the person's livelihood or for substantial financial gain" — that would seem to eliminate many bloggers, also known as "citizen journalists."

I am uncomfortable in general with confidential sources, given their overuse and misuse by some journalists through the years. But national polling results by the First Amendment Center of the public and journalists, as well as surveys by other groups, show that both groups see an occasional need for confidential sources for some stories.

The public is better-served when journalists disclose fraud, corruption and abuse of power by those in government as a result of information provided by those who, without confidentiality, would not come forward for fear of damage to reputation, career or family. But there's no requirement in the First Amendment's protection of a free press that it apply only to those for whom journalism provides a "substantial portion" of their income, or that anyone get "substantial financial gain" as a result of exercising that particular freedom.

Such a broad definition likely would doom the proposed law, raising the specter that "everyone" might claim to be a journalist when subpoenaed to testify about a confidential source. But it would seem a hearing to determine the issue of "substantial" compensation or gain might just as easily consider the purpose of the revealing story or blog — and as such stick closer to the undefined provision for a free press in the First Amendment.

HOME RUN: Yet another court (this one in St. Louis, a three-judge panel of the 8th U.S. Circuit Court of Appeals) has held that sports statistics are in the public domain, neither the property of the league or of individual players. Good news for fantasy baseball fans, in terms of fees to pay for opportunities to follow the games in detail. Bad news for those hoping to charge for licensing and image rights.

The stakes are no small thing: Close to $2 billion a year by some estimates. But in a less-financial sense, the court's ruling was a larger victory for those who consider publicly accessible news and information — as opposed to scripted performances and work products like speeches and books — to be outside the realm of fees and legal permissions.

In an era of increasing control by leagues, teams and individual owners over pre-game and on-the-field access, data and personnel, the 8th Circuit ruling represents a unique court order of "play ball" without a following "and pay up."

Comment? E-mail me


Related

Pa. woman in hot water for profanity-laced tirade at toilet

Dawn Herb, who was shouting curses at overflowing commode in her home, was overheard by off-duty cop, charged with disorderly conduct. 10.17.07

House votes to give journalists shield for confidential sources
Co-sponsor Mike Pence, R-Ind., says measure 'is not about protecting reporters, it's about protecting the public's right to know.' 10.17.07

8th Circuit rules in favor of fantasy baseball company
Three-judge panel upholds lower court decision that lets fantasy league use players' names and statistics without paying licensing fee. 10.17.07

Pa. judge flushes toilet-tirade complaint
Court dismisses disorderly conduct charge, finding First Amendment protects woman who cursed in frustration at malfunctioning commode. 12.17.07

MLB strikes out in effort to shut down fantasy baseball business
Supreme Court leaves intact lower courts' rulings that found company has free-speech right to use players' names and stats. 06.02.08

Journalist ‘shield’ – balancing openness, security
By Gene Policinski Under a Senate bill, journalists would be protected from having to reveal confidential sources — but not if they witnessed a crime or if there were an imminent threat to life or national security. 10.07.07

Rhubarb resumes over who owns sports info, images
By Gene Policinski In the struggle over rights to game information, photos and more, let's remember that it falls to a free press to report the good and the bad, without having to answer to owners or investors more interested in marketing than journalism. 03.09.08

First Amendment Watch blog with Gene Policinski


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