Cohen v. California

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1971 U.S. Supreme Court case on freedom of speech and public civility

1971 United States Supreme Court case

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**Cohen v. California **

Cohen v. California, 403 U.S. 15 (1971), is a landmark decision of the US Supreme Court holding that the First Amendment prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying "Fuck the Draft " in the public corridors of a California courthouse.

The Court ruled that displaying a mere four-letter word was not sufficient justification for allowing states to restrict free speech and that free speech can be restricted only under severe circumstances beyond offensiveness. The ruling set a precedent used in future cases concerning the power of states to regulate free speech in order to maintain public civility.

The Court described free expression as a "powerful medicine" in a pluralistic society like the United States. It is intended to "remove government restraints" from public discussion to "produce a more capable citizenry" and preserve individual choices which is imperative for "our political system."

Background

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Facts of the case

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On April 26, 1968, 19-year-old Paul Robert Cohen was arrested for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Hall of Justice . Cohen was reportedly at court to testify as a defense witness in an unrelated hearing, and had removed his jacket on entering the courtroom.

An officer who had noticed his jacket in the corridor requested that the judge hold Cohen in contempt of court, but the judge did not take any action. The officer then waited until Cohen exited the courtroom and arrested him for disturbing the peace. Cohen claimed that he wore the jacket in an act of protest against the Vietnam War , to inform others of the depth of his feelings. 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] tumultuous or offensive conduct", and sentenced to 30 days in jail.

Lower courts

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Cohen appealed the conviction to the Appellate Department of the Superior Court, which in a memorandum opinion ruled that "conduct that is merely offensive is insufficient". The State then requested a rehearing, and the Superior Court then added, in a more lengthy opinion, that according to the California Penal Code, offensive conduct must also be tumultuous. The state then appealed to the California Court of Appeal , which upheld the conviction with the claim that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace ".

According to the ruling, Cohen had "carefully chose[n] the forum for his views where his conduct would have an effective shock value" and that he should have known that the words on his jacket could have resulted in violent reactions. The California Court of Appeal also stated that Cohen used words that were below the "minimum standard of propriety and the accepted norm of public behavior". The opinion stated that California could determine what language was not suitable for use in public, an expansion of First Amendment jurisprudence. After the California Supreme Court denied review, the U.S. Supreme Court granted a writ of certiorari on June 22, 1970.

Supreme Court

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Arguments

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The case was argued by Melville Nimmer , representing Paul Robert Cohen, and Michael T. Sauer , representing California . Anthony G. Amsterdam filed an _amicus curiae _ brief for the American Civil Liberties Union of Northern California, in support of Cohen. At the beginning of oral argument, Chief Justice Warren Burger advised Nimmer that it would not be necessary to "dwell on the facts", effectively stating that Nimmer should not state the word on the jacket. Seconds later, Nimmer did exactly that, stating that "What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, 'Fuck the Draft'." Nimmer believed that if he did not say the word, it would concede that there are some places that certain words cannot be uttered and the case would be lost. Nimmer also distinguished what Cohen did from contempt of court , emphasizing that Cohen did not display the jacket in a courtroom while a court was in session.

Sauer's argument was that the conviction should stand as is, that the very words were offensive conduct by themselves, even when there was no objection by anyone present. Sauer also argued that the violation consisted of both speech and conduct, and that the conduct was not protected speech. Sauer noted that the statute read that it was an offense to "disturb the peace of any neighborhood or person" and that since persons were present that could be offended, Cohen's conviction should be upheld. Sauer did concede that the case turned on the display of the "four-letter word" when pressed on it by Justice Potter Stewart .

Opinion

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Justice John Harlan wrote the majority opinion in Cohen.

Justice John Harlan announced the decision of the Court, which reversed the appellate court's ruling in a 5–4 decision. First, Justice Harlan's opinion confirmed that the issue with which the Court was dealing consisted of "a conviction resting solely upon 'speech', not upon any separately identifiable conduct" (citation omitted). Because the conviction was based on speech, Justice Harlan stated that the defendant may be criminally punished only if his speech (the words on his jacket) fell within a specific category of speech that is not protected by the First Amendment. The justice then outlined why the word "fuck" did not fall into one of those categories. As Justice Harlan said in the decision, "while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric".

Blackmun's dissent

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