Cohen v. California

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Cohen v. California, 403 U.S. 15 (1971), was a United States Supreme Court case dealing with freedom of speech. The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket in the public corridors of a courthouse that displayed the phrase, "Fuck the Draft".

Background of the case

On April 26, 1968, 19-year old Paul Robert Cohen was arrested for wearing a jacket bearing the words "Fuck the Draft" inside the Los Angeles Courthouse in the corridor outside the division 20 of the municipal court.^[1] He was convicted of violating section 415 of the California Penal Code, which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct," and sentenced to 30 days in jail.

The conviction was upheld by the California Court of Appeal, which held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." After the California Supreme Court denied review, the U.S. Supreme Court granted a certiorari. The case was argued by Melville Nimmer, representing Paul Robert Cohen, and Michael T. Sauer, representing California.

The Court's decision

The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's ruling. First, Justice Harlan began by emphasizing that this case concerned "speech", and not "conduct", as was at issue in United States v. O'Brien. Harlan then stated that any attempt by California to abridge the content of Cohen's speech would be no doubt unconstitutional except in a few instances, like, for example, if California was regulating the time, place, or manner of Cohen's speech independent from the content of the speech.

Second, Harlan also expressed the concern of the Court that section 415 was vague and did not put citizens on notice as to what behavior was unlawful. Indeed, the words "offensive conduct" alone cannot "be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created."

Third, the mere use of an untoward four-letter word did not place the speech into a category of speech that has traditionally been subject to greater regulations by the government, as in Roth v. United States, for example. Similarly, Harlan and the Court refused to categorize the speech at issue as a "fighting word" under Chaplinsky v. New Hampshire, because no "individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult." Finally, the Court was unwilling to give credence to the idea that the government could suppress the type of speech at issue here in order to protect the public at large.

Having discarded what was not at issue in this case, Harlan stated that the issue was "whether California can excise, as "offensive conduct", one particular scurrilous epithet from the public discourse, either upon the theory...that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary."

The states could not. As to the first theory, the Court stated that it was not presented with any evidence suggesting that the speech was likely to cause an incitement to violence. As to the second theory, the Court stated that while it was a closer call, the rationale was not sufficient.

Specifically, Harlan, citing Justice Brandeis' opinion in Whitney v. California, emphasized that the First Amendment operates to protect the inviolability of the marketplace of ideas imagined by the Founding Fathers. Allowing California to suppress the speech at issue in this case would be destructive to that market place of ideas.

"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance", Justice Harlan wrote. "These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength."^[2]

"[A]bsent a more particularized and compelling reason for its actions", Harlan continued, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."^[3] In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."^[4]

Thus, Harlan’s arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a “civil” society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter how radical they may be.

Blackmun's dissent

In a dissenting opinion, Justice Harry Blackmun, joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but conduct (an "absurd and immature antic") and therefore not protected by the First Amendment.^[5]

The second paragraph of Blackmun's dissent noted that the Supreme Court of California construed section 415 in In re Bushman 1 Cal.3d 767, 83 Cal.Rptr. 375 (Cal, 1970), which was decided after the Court of Appeal of California's decision in Cohen v. California and the Supreme Court of California's denial of review. Blackmun wrote that the case "ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman."^[6]

See also

• List of United States Supreme Court cases, volume 403

References

Further reading

• Balter-Reitz, Susan J. (2003). "Cohen v. California". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 160–171. ISBN 0-8173-1301-X. 
• Fairman, Christopher M. (2009). Fuck: Word Taboo and Protecting Our First Amendment Liberties. Sphinx Publishing. ISBN 1572487119. 

External links

• Text of Cohen v. California, 403 U.S. 15 (1971) is available from:  Findlaw  Justia  BC 

• First Amendment Library entry for Cohen v. California
• Abstract on Cohen v. California, from OYEZ
• Krattenmaker, Thomas G. (2012). "Looking Back at Cohen v. California: A 40 Year Retrospective from Inside the Court". William and Mary Bill of Rights Journal 20: 651. ; a retrospective on the case by Thomas G. Krattenmaker, the Supreme Court clerk who drafted the majority opinion