Cohen V. California
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''Cohen v. California'', 403 U.S. 15 (1971), was a
landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly ...
of the
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
holding that the
First Amendment First most commonly refers to: * First, the ordinal form of the number 1 First or 1st may also refer to: Acronyms * Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array * Far Infrared a ...
prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying "Fuck
the Draft Conscription, also known as the draft in the United States and Israel, is the practice in which the compulsory enlistment in a national service, mainly a military service, is enforced by law. Conscription dates back to antiquity and it contin ...
" in the public corridors of a California courthouse. The Court ultimately found that displaying a mere four-letter word was not sufficient justification for allowing states to restrict
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognise ...
and that free speech can be restricted only under severe circumstances beyond offensiveness. The ruling set a
precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
used in future cases concerning the power of states to regulate free speech in order to maintain public civility. The Court describes free expression as a "powerful medicine" in such 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 an imperative for "our political system."


Background


Facts 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" in a corridor of the
Los Angeles Los Angeles, often referred to by its initials L.A., is the List of municipalities in California, most populous city in the U.S. state of California, and the commercial, Financial District, Los Angeles, financial, and Culture of 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 The Vietnam War (1 November 1955 – 30 April 1975) was an armed conflict in Vietnam, Laos, and Cambodia fought between North Vietnam (Democratic Republic of Vietnam) and South Vietnam (Republic of Vietnam) and their allies. North Vietnam w ...
, to inform others of the depth of the feelings. He was convicted of violating section 415 of the
California Penal Code The Penal Code of California forms the basis for the application of most criminal law, criminal procedure, penal institutions, and the execution of sentences, among other things, in the United States, American state of California. It was origin ...
, which prohibited " maliciously and willfully disturb ngthe
peace Peace is a state of harmony in the absence of hostility and violence, and everything that discusses achieving human welfare through justice and peaceful conditions. In a societal sense, peace is commonly used to mean a lack of conflict (suc ...
or quiet of any neighborhood or person ytumultuous or offensive conduct", and sentenced to 30 days in jail.


Lower courts

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".Ferber, ''Discourse'' at 287. 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 The California Courts of Appeal are the state intermediate appellate courts in the U.S. state of California. The state is geographically divided along county lines into six appellate districts.
, which upheld the conviction with the claim that " offensive conduct" means "behavior which has a tendency to provoke others to acts of
violence Violence is characterized as the use of physical force by humans to cause harm to other living beings, or property, such as pain, injury, disablement, death, damage and destruction. The World Health Organization (WHO) defines violence a ...
or to in turn disturb the
peace Peace is a state of harmony in the absence of hostility and violence, and everything that discusses achieving human welfare through justice and peaceful conditions. In a societal sense, peace is commonly used to mean a lack of conflict (suc ...
". According to the ruling, Cohen had "carefully chose 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 The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sac ...
denied review, the U.S. Supreme Court granted a writ of
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...
on June 22, 1970.


Supreme Court


Arguments

The case was argued by Melville Nimmer, representing Paul Robert Cohen, and Michael T. Sauer, representing
California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
. Anthony G. Amsterdam filed an ''
amicus curiae An amicus curiae (; ) is an individual or organization that is not a Party (law), party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. Wheth ...
'' brief for the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million. T ...
of Northern California, in support of Cohen. At the beginning of oral argument, Chief Justice
Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul College of Law i ...
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 Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the co ...
, 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 In its broadest sense, justice is the idea that individuals should be treated fairly. According to the ''Stanford Encyclopedia of Philosophy'', the most plausible candidate for a core definition comes from the ''Institutes (Justinian), Inst ...
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who was an associate justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to criminal justice reform ...
.


Opinion

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

In a
dissenting opinion A dissenting opinion (or dissent) is an Legal opinion, opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opi ...
, Justice
Harry Blackmun Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultima ...
, joined by Burger and
Black Black is a color that results from the absence or complete absorption of visible light. It is an achromatic color, without chroma, like white and grey. It is often used symbolically or figuratively to represent darkness.Eva Heller, ''P ...
, 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 The Supreme Court of California is the Supreme court, highest and final court of appeals in the judiciary of California, courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly ...
interpreted section 415 in ''In re Bushman'', 1 Cal.3d 767, 463 P.2d 727 (
Cal Cal or CAL may refer to: Arts and entertainment * ''Cal'' (novel), a 1983 novel by Bernard MacLaverty * "Cal" (short story), a science fiction short story by Isaac Asimov * ''Cal'' (1984 film), an Irish drama starring John Lynch and Helen Mir ...
, 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. The appeal court's ruling was cited in ''Bushman''. 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''" since the interpretation of section 415 used in the appeal court's ruling may no longer be the authoritative interpretation.


Subsequent jurisprudence

The ''Cohen'' ruling has been cited in many subsequent court rulings.


''National Socialist Party of America v. Village of Skokie''

''
National Socialist Party of America v. Village of Skokie ''National Socialist Party of America v. Village of Skokie'', 432 U.S. 43 (1977), arising out of what is sometimes referred to as the Skokie Affair, was a List of landmark court decisions in the United States, landmark decision of the Supreme Cour ...
'' was a 1977
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
case. It concerned the constitutionality of an injunction against members of the
National Socialist Party of America The National Socialist Party of America (NSPA) was a Chicago-based organization founded in 1970 by Frank Collin shortly after he left the National Socialist White People's Party. The party's headquarters was in Chicago's Marquette Park, and its ...
prohibiting them from holding a march in
Skokie, Illinois Skokie (; formerly Niles Center) is a Village (United States), village in Cook County, Illinois, United States. According to the 2020 United States census, 2020 census, its population was 67,824. Skokie lies approximately north of Chicago's dow ...
, which had a large
Jewish Jews (, , ), or the Jewish people, are an ethnoreligious group and nation, originating from the Israelites of History of ancient Israel and Judah, ancient Israel and Judah. They also traditionally adhere to Judaism. Jewish ethnicity, rel ...
population. Following that ruling, the
Illinois Appellate Court The Illinois Appellate Court is the court of first appeal for civil and criminal cases rising in the Illinois circuit courts. In Illinois, litigants generally have a right to first appeal from final decisions or judgements of the circuit court ...
and
Illinois Supreme Court The Supreme Court of Illinois is the state supreme court, the highest court of the judiciary of Illinois. The court's authority is granted in Article VI of the current Illinois Constitution, which provides for seven justices elected from the fiv ...
cited ''Cohen v. California'' in their respective rulings on the case. The ruling in the Illinois Appellate Court found that, while the actions of the Nazi marchers were offensive to Jewish Skokie residents, mere offensiveness was not enough to justify curtailing free speech and assembly. In the Illinois Supreme Court ruling, the opinion states, " e Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer."


''R.A.V. v. St. Paul''

'' R.A.V. v. City of St. Paul'' was a 1992
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
case which ruled that St. Paul's Bias-Motivated Crime Ordinance was unconstitutional because it discriminated by the content of "fighting words". The Court stated that while the law applied to "fighting words", which are not protected under the First Amendment, it was unconstitutional because it specifically targeted fighting words that "insult or incite violence on the basis of race, religion, or gender". In its ruling, the Court acknowledged that while cross-burning was an abhorrent act, the ordinance was nevertheless void and the defendants could be prosecuted by other means. In his opinion on the ruling, Justice John Paul Stevens cited ''Cohen'' in his claim that "we have consistently construed the 'fighting words' exception set forth in Chaplinsky narrowly".


''The State of Washington v. Marc D. Montgomery''

In ''State of Washington v. Marc D. Montgomery'', 15-year-old Montgomery successfully won an appeal overturning his convictions for disorderly conduct and possession of marijuana on the grounds of free speech. Montgomery was arrested after shouting obscenities, such as "fucking pigs, fucking pig ass hole" at two police officers passing in their patrol car. Citing ''Cohen v. California'', the Court ruled that Montgomery's words could not be classified as fighting words, and restricting speech based merely on its offensiveness would result in a "substantial risk of suppressing ideas in the process".


''FCC v. Pacifica Foundation''

In the Supreme Court case ''Federal Communications Commission v. Pacifica Foundation'' (1978), the Court ruled that the commission could regulate broadcasts that were indecent, but not necessarily obscene. In the ruling, the Court stated that while the ''Cohen'' ruling disputed that Cohen's speech would offend unwilling viewers, and that no one in the courthouse had actually complained, the commission was responding to a listener's complaint. Furthermore, the ruling noted that the while Cohen was sentenced to 30 days in jail, "even the strongest civil penalty at the commission's command does not include criminal prosecution". In the dissenting opinion, the ruling cited ''Cohen'' to argue that listeners could simply turn the radio off, and therefore offensive speech on the radio did not infringe on people's right to privacy.


''Bethel School District v. Fraser''

In Supreme Court case ''Bethel School District v. Fraser'' (1986), the court ruled that public schools had the right to regulate speech that was indecent, but not necessarily obscene. The Court stated that while adults could not be prohibited from using offensive speech while making a political statement, this protection did not extend to public school students. The ruling cited ''New Jersey v. T.L.O''., arguing that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings".


Other cases

The following is an incomplete list of other court cases that have cited ''Cohen v. California'': *''State of Louisiana v. Meyers, 462 So.2d 227 (1984)'' *''Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)'' *''Lewis v. City of New Orleans, 415 U.S. 130 (1974)'' *''Gooding v. Wilson, 405 U.S. 518 (1972)'' *'' New Jersey v. T.L.O., 469 U.S. 325 (1985)''


Scholarly response

In his critique of the ''Cohen'' ruling, Professor R. George Wright wrote that it would be reasonable to expect all speakers to maintain at least a minimum level of decorum in their speech, such that they do not disrespect "substantial numbers of reasonably tolerant people". Wright pushed back on claims made by other scholars that Cohen should not be censored because the word "Fuck" in the phrase "Fuck the Draft" expressed the depth of Cohen's emotion, and instead argued that it is risky to assume that a slogan, " profane or otherwise, is likely to be particularly apt in expressing deep frustrations". He further argued that Cohen's emotions should not be assumed from his willingness to offend. Subsequently, Wright claimed that the effect of speech on the level of public discourse should not be ignored. Legal scholar
Archibald Cox Archibald Cox Jr. (May 17, 1912 – May 29, 2004) was an American legal scholar who served as United States Solicitor General, U.S. Solicitor General under President John F. Kennedy and as a special prosecutor during the Watergate scandal. During ...
similarly argued that the expression, "Fuck the Draft", in the ''Cohen'' ruling unnecessarily lowered the standard of public debate. In his
retrospective A retrospective (from Latin ', "look back"), generally, is a look back at events that took place, or works that were produced, in the past. As a noun, ''retrospective'' has specific meanings in software development, popular culture, and the arts. ...
on the ruling, legal scholar Thomas Krattenmaker points out that at the time of the ruling, uttering the word "Fuck" in public, especially in the presence of women, was exceptionally rare, and that it was not unreasonable that Cohen aimed to be offensive in his use of the word. Despite this, Krattenmaker states that the ''Cohen'' ruling successfully addresses and disputes arguments that Cohen's speech should not be protected because of the location of the speech, its perceived obscenity, and its potential classification as "fighting words". However, Krattenmaker does argue that governments should perhaps have more power to regulate hurtful speech, and criticizes the Court's treatment of the captive audience problem for providing little direction for future rulings. Legal scholar William Cohen also noted the limitations of the ruling in providing guidance on whether profanity should still be protected in certain locations or given certain audiences. Cohen argues that because the ruling is "narrowly limited to its facts", it has not been used in future cases pertaining to the regulation of offensive speech, such as ''FCC v. Pacifica Foundation''.William Cohen,
Look Back at'' Cohen v. California
34 1595 (1986-1987).
As a result, the ruling has been contradicted in future cases that have attempted to interpret the limitations of the First Amendment in specific contexts.


See also

* '' Mahanoy Area School District v. B.L.'' (2021), a case involving the use of the word ''fuck'' by a student while off campus and outside of school hours * List of United States Supreme Court cases, volume 403


Notes


References


Further reading

* *


External links

*
First Amendment Library entry for ''Cohen v. California''
* ; a retrospective on the case by Thomas G. Krattenmaker, the Supreme Court clerk who drafted the majority opinion {{DEFAULTSORT:Cohen V. California Conscription in the United States United States Supreme Court cases United States Free Speech Clause case law Legal history of California 1971 in United States case law American Civil Liberties Union litigation 1971 in California United States Supreme Court cases of the Burger Court Protests against the Vietnam War