In Commonwealth v. Bliesath, decided Friday by the Pennsylvania Superior Court (Judge John Bender, joined by Judge Maria McLaughlin, with Judge Daniel McCaffery concurring in the judgment), the defendant had been convicted of disorderly conduct under 18 Pa.C.S. § 5503(a)(3), which covers anyone who, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," "uses obscene language, or makes an obscene gesture." (He was sentences to 90 days' probation.)
The Commonwealth presented evidence that [Appellant] was seen by [City of Reading Police] Officer [Sean] Driscoll yelling at random people in the area of 6th and Penn Streets in the City of Reading. After being asked to stop by the [o]fficer, and failing to do so, the [o]fficer got out of the vehicle and approached [Appellant] to again ask him to stop and ask[ ] for his identification. When the [o]fficer was writing down [Appellant's] information, the [o]fficer observed [Appellant] yell racial slurs and threats at two males walking down the street while the [o]fficer was standing right in front of [Appellant]….
Specifically, Officer Driscoll stated that Appellant "yelled at the people to the southwest corner[, ']shut up you niggers[,'] and then he yelled again[, ']shut up I'm going to kill you because you are niggers[,'] and then he shouted[, ']I have two guns on me.[']"
The appellate court noted that Pennsylvania cases had read "obscene" to mean obscenity in the First Amendment sense—essentially, hard-core pornography. As a result, past precedents have found that, for instance, "chant[ing] 'fuck the police' during a funeral procession of a fallen police officer," "responding 'fuck you, asshole' to a street department employee and accompanying the response with the extension of his middle finger," and saying "go to hell Betsy," all didn't qualify as obscene.
