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Cohen v. California

 
US Supreme Court: Cohen v. California
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403 U.S. 15 (1971), argued 22 Feb. 1971, decided 7 June 1971 by vote of 5 to 4; Harlan for the Court, Blackmun in dissent, joined by Burger and black, and White in part. In April 1968 Paul Robert Cohen wore a jacket bearing the words “Fuck the Draft” in a Los Angeles courthouse. He was arrested and subsequently convicted for violating a California statute prohibiting any person from “disturb[ing] the peace … by offensive conduct.” The Supreme Court had to decide whether Cohen's speech was punishable because it fit one of the “exceptions” to free speech protected by the First Amendment.

The Court conceded that Cohen's expletive was “vulgar,” but it concluded that his speech was nonetheless protected by the First Amendment. It was neither an “incitement” to illegal action nor “obscenity.” Nor did it constitute “fighting words” (personally abusive epithets), for it had not been directed at a person who was likely to retaliate or at someone who could not avoid the message. Therefore, the conviction could be justified only by the state's desire to preserve the cleanliness of discourse in the public sphere. The Court refused to permit the state such a broad power, holding that no objective distinctions can be made between vulgar and nonvulgar political speech, and that the emotive aspects of speech are often as important as the purely cognitive. “It is … often true,” Justice Harlan wrote, “that one man's vulgarity is another's lyric … words [which] are often chosen as much for their emotive as their cognitive force” (pp. 25–26).

By expanding the constitutional foundation for protecting provocative and potentially offensive speech, Cohen has become a landmark decision.

See also Speech and the Press; Unprotected Speech.

— Donald A. Downs

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Wikipedia: Cohen v. California
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Cohen v. California
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued February 22, 1971
Decided June 7, 1971
Full case name Paul Robert Cohen, Appellant v. State of California
Citations 403 U.S. 15 (more)
91 S. Ct. 1780; 29 L. Ed. 2d 284; 1971 U.S. LEXIS 32
Prior history Defendant convicted, Los Angeles Municipal Court; affirmed, 81 Cal. Rptr. 503 (Cal. Ct. App. 1969); rehearing denied, Court of Appeal of California, Second Appellate District 11-13-69; review denied, Supreme Court of California, 12-17-69
Subsequent history Rehearing denied, 404 U.S. 876 (1971)
Holding
The First Amendment, as applied through the Fourteenth, prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace. Court of Appeal of California reversed.
Court membership
Chief Justice
Warren E. Burger
Case opinions
Majority Harlan, joined by Douglas, Brennan, Stewart, Marshall
Dissent Blackmun, joined by Burger, Black, White (only paragraph 2)
Laws applied
U.S. Const. amend. I; Cal. Penal Code § 415

Cohen v. California, 403 U.S. 15 (1971) was a United States Supreme Court case dealing with freedom of speech.

Contents

Background of the case

On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket bearing the words "Fuck the Draft" inside the Los Angeles Courthouse. Inside the court room he had the jacket folded over his arm, only after exiting the room he put the jacket on and was then arrested. 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."

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 writ of certiorari. The case was argued by Melville Nimmer, representing Paul Robert Cohen, and Michael 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. "[A]bsent a more particularized and compelling reason for its actions," it said, "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."

In the opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."

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. Thirdly, 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.

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."

See also

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 081731301X. 

External links

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

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