Free Speech Hero? Man Fights 2-Year Court Battle Over His Right To Call Someone An Asshole

'Crude' comment shielded, court says State Superior Court tosses harassment conviction, ruling that it was free speech.

By John L. Micek Call Harrisburg Bureau

Last Updated: May 20, 2007

The state Superior Court has overturned the harassment conviction of a South Whitehall Township man who frequently participated in anti-abortion protests at an Allentown clinic.

Phillip T. Pongracz was ''crude and childish'' when he thrice called Joni Tedesco, an armed security guard at the Allentown Women's Health Clinic on Union Boulevard, an ''a--hole'' in 2004, but his speech was protected by the First Amendment, according to an 11-page decision entered Monday.

'I'd like to get my name vindicated,'' Pongracz said during a brief interview on Thursday. ''It's been, like, a two-year battle.''

''Finally, someone recognized the First Amendment,'' Pongracz's lawyer, Denis V. Brennan of the American Catholic Lawyers Association, said Friday. ''One wonders why anyone would spend any time prosecuting name-calling.''

In March 2006, Lehigh County Judge Kelly L. Banach ordered Pongracz to pay prosecution costs and perform 100 hours of community service in connection with the Nov. 13, 2004 incident near the center at 1409 Union Blvd. She also ordered him to have no contact with Tedesco.

At a summary appeal trial in January 2006, Tedesco testified that she had finished her shift at the center and was sitting nearby in her car when Pongracz walked by her, pointed at her and called her the profane name.

Only hours earlier, Pongracz had been arrested for walking the wrong way down a throughway in front of the women's center, court papers show.

In the appellate decision issued Monday, the Superior Court said it had little doubt that Pongracz intended to harass Tedesco when he called her an ''a--hole'' three times in the space of about 10 seconds.

But because Pongracz's speech had a specific purpose -- to retaliate against a perceived injustice -- his speech was constitutionally protected and wasn't harassment ''as a matter of law,'' the decision reads.

''This court is sensitive to the delicate balance that must be struck between protecting the exchange of hostile ideas and maintaining the civility required to effectuate and allow for such exchange,'' the decision reads. ''We do not find that [Pongracz's] crude and childish name-calling alone, however, rises to a level of incivility that threatens this balance in this specific instance.''

Tedesco filed the original lawsuit. Jennifer Boulanger, the women's center director, declined to comment on the appellate court's decision.

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