Cohen v. California
Encyclopedia
Cohen v. California, 403 U.S. 15 (1971) was a United States Supreme Court
case dealing with freedom of speech
. The Court overturned a disturbing the peace
conviction of a man wearing a jacket decorated with profanity
.
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,"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 writ of certiorari. The case was argued by Melville Nimmer
, representing Paul Robert Cohen, and Michael Sauer, representing California
.
, 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 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, Harland 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."
"[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." In his opinion Justice Harlan famously wrote "one man's vulgarity
is another's lyric
."
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.
ing 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."
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case dealing with freedom of speech
Freedom of speech in the United States
Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
. The Court overturned a disturbing the peace
Disturbing the Peace
Disturbing the Peace is the second studio album by Alcatrazz, and is the only one featuring Steve Vai on guitar. One of the singles, God Blessed Video, can be found on the fictional radio station, V-Rock, on Grand Theft Auto: Vice City. Weeks on Chart: 7, Peak: #133...
conviction of a man wearing a jacket decorated with profanity
Profanity
Profanity is a show of disrespect, or a desecration or debasement of someone or something. Profanity can take the form of words, expressions, gestures, or other social behaviors that are socially constructed or interpreted as insulting, rude, vulgar, obscene, desecrating, or other forms.The...
.
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 AngelesLos Angeles, California
Los Angeles , with a population at the 2010 United States Census of 3,792,621, is the most populous city in California, USA and the second most populous in the United States, after New York City. It has an area of , and is located in Southern California...
Courthouse
Courthouse
A courthouse is a building that is home to a local court of law and often the regional county government as well, although this is not the case in some larger cities. The term is common in North America. In most other English speaking countries, buildings which house courts of law are simply...
. 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
California Penal Code
The Penal Code of California forms the basis for the application of criminal law in the American state of California. It was originally enacted in 1872 as one of the original four California Codes, and has been substantially amended and revised since then....
, which prohibited "maliciously
Malice (legal term)
Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a human being...
and willfully disturb[ing] the peace
Peace
Peace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
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
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 into six appellate districts...
, which held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
or to in turn disturb the peace
Peace
Peace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
." After the California Supreme Court denied review, the U.S. Supreme Court granted a writ of certiorari. The case was argued by Melville Nimmer
Melville Nimmer
Melville Bernard Nimmer was an American lawyer and law professor, renowned as an expert in freedom of speech and United States copyright law....
, representing Paul Robert Cohen, and Michael Sauer, representing California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
.
The court's decision
The Court, by a vote of 5-4, per Justice John Marshall Harlan IIJohn Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
, 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 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
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, for example. Similarly, Harlan and the Court refused to categorize the speech at issue as a "fighting word" under Chaplinsky v. New Hampshire
Chaplinsky v. New Hampshire
Chaplinsky v. State of New Hampshire, was a case decided by the Supreme Court of the United States, in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.-Facts of the case:...
, 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, Harland 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
Whitney v. California
Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...
, emphasized that the First Amendment operates to protect the inviolability of the marketplace of ideas
Marketplace of ideas
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The "marketplace of ideas" belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an...
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."
"[A]bsent a more particularized and compelling reason for its actions," Harlan continued, "the State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
may not, consistently with the First
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and Fourteenth
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
Amendments, make the simple public display of this single four-letter expletive
Profanity
Profanity is a show of disrespect, or a desecration or debasement of someone or something. Profanity can take the form of words, expressions, gestures, or other social behaviors that are socially constructed or interpreted as insulting, rude, vulgar, obscene, desecrating, or other forms.The...
a criminal offense." In his opinion Justice Harlan famously wrote "one man's vulgarity
Vulgarity
Vulgarity is the quality of being common, coarse or unrefined. This judgement may refer to language, visual art, social classes or social climbers...
is another's lyric
Lyric poetry
Lyric poetry is a genre of poetry that expresses personal and emotional feelings. In the ancient world, lyric poems were those which were sung to the lyre. Lyric poems do not have to rhyme, and today do not need to be set to music or a beat...
."
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 dissentDissent
Dissent is a sentiment or philosophy of non-agreement or opposition to a prevailing idea or an entity...
ing opinion, Justice Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, 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
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
, 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."