In the toilet

Posted: Oct 28, 2007 12:00 AM

Americans have become foul-mouthed. Vulgarity, swearing, cursing . . . such talk is everywhere, and it’s getting out of hand.

Now, I’m not perfect, but I do try to keep my own such outbursts to a minimum. Besides, my mother was right: The more you rely on profanity, the more stupid you appear. When you replace the perfect word with the common vulgarity, you appear intellectually lazy, not bright enough to retrieve from memory and deliver the truly apt nouns and verbs and adjectives.

Yet, there’s a time and place for everything. I can more than sympathize with use of profanity when the situation merits it.

Case in point: A woman in West Scranton, Pennsylvania, is facing a disorderly conduct charge for swearing at her toilet. She could go to jail for a whopping 90 days for this.

And all she did is curse her stopped-up, overflowing toilet.

Unfortunately, her bathroom window was open. Her words overflowed her property boundary and hit her neighbor’s ears. Rather than offer to help her with her toilet, her neighbor complained, telling her to stop using profanity. She responded with gusto.

Little did she know, however, that the man was an off-duty cop. He filed a complaint.

Even if swearing in public can be construed, legitimately, as a crime, there should be a few exceptions, no? Like swearing in your own home. And like swearing at a toilet . . . hers was, perhaps, one of those made during the period when Congress first regulated them to work so much worse than before.

The ACLU has now taken up the woman’s cause. Legal experts at The Volokh Conspiracy and elsewhere tend to agree with the ACLU attorney: there is no case here.

But Scranton’s officials stand by the off-duty cop and the arresting officer. Director of Public Safety Ray Hayes insisted that such incidents “are not as cut and dry as they originally appear.” And, while reading the original new story, I could almost hear what was coming: “Freedom of speech is not an unfettered right.”

Now, in a more charitable mood, I would grant him what he’s no doubt trying to say. “Free speech” must not be construed as the right to say literally anything in any context. You may not say fraudulent things when entering a contract, for instance.

But still, doesn’t the idea of “fettered rights” give you the creeps? This was said by a government official in a city of one of these United States. Ostensibly, the man who said it is there to protect our rights, “fettered” though they may be.

The key to understanding free speech is property. I have free speech in my home, of course. (Though my wife and daughters do complicate that right, practically speaking.) Further, I am one of those people who speaks and writes for a living, some of the time. My right to speak, along with “the freedom of the press” means that the recordings I make of my speech for my Common Sense radio program may not be confiscated or otherwise squelched by those who disagree. But my right to make one of these Common Sense recordings does not allow me to force any old radio station to run them. I have to gain permission and co-operation from each radio station. Thankfully, enough radio stations run them to make the whole project worthwhile. But my free speech rights don’t impose any obligations on any of them to put me “on the air.” It’s the stations’ rights to free speech (and property) that allows them to tell me No. Or better yet, Yes.

But I don’t see this unfolding of rights and obligations in society as a “fettering” of rights. It shows, instead, how more basic concepts, like the rights to liberty, property, and freedom of contract come to full flower in the real world. Indeed, without these basic rights — defended in other clauses of the Bill of Rights — the Free Speech clause of the Bill of Rights means next to nothing.

The classic explanation of the principle was Murray Rothbard’s response to Oliver Wendell Holmes’s famous cautionary maxim about not having a right to cry “Fire!” in a crowded theater. Rothbard rightly noted that, well, you do . . . when there’s a fire. When there’s no fire, then such a cry would be a breach of contract with the owner of the theater, who makes her living selling tickets to events that would be ruined by random “Fire!” shouts.

So, in the case of Dawn Herb, mother and loudly unwilling plumber, where, precisely, did her right to swear and cuss and curse end? When she opened the window?

You could argue that, but I doubt it. It seems to me that legitimate disagreements about nuisances such as loud music or loud cursings — all instances of real or apparent property rights conflicts, or the lack of property rights clearly defined — should be treated with a little common sense. And common sense would have it that one doesn’t call the cops when a neighbor’s toilet overflows and frustrations erupt.

Outbursts here and there are not the same thing as hours and hours of after-hours music, the kind of nuisance police are known to knock on doors to stop.

There’s no doubt that a person loudly swearing at the audience in a theater is disrupting all sorts of people’s rights. But, if that same person sees a fire and says the same things (just to gain attention) no one in their right mind would prosecute.

And when stuff belonging inside a toilet or septic system comes bubbling forth, no reasonable person would fail to excuse a few echoic bubblings-forth from the mouth of the toilet’s frustrated operator.

Such words can only seem, well, apt.

And if a window is open and the emergency language spews out of the house, just as the contents of the toilet spewed out of the bathroom and into the kitchen, as in this case, good neighbors might just show a little mercy. Even sympathy.

It will be interesting to see how the court case comes out. But in our better days, such a case would never see the inside of a courtroom.

Instead, Dawn would walk over to her neighbor’s home, knock on the front door, and say, “Gee, I’m sorry I lost my temper and disturbed you, neighbor.” Her neighbor would then say, “That’s okay. Under the circumstances, I can certainly understand.”

No lawyers needed. No threats of jail time.

Then he ought to invite her in for a cup of coffee, don’t you think?

And perhaps even apologize for not helping out, earlier. The #@&%!#.