Cohen v. California

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Cohen v. California
Seal of the United States Supreme Court
Argued February 22, 1971
Decided June 7, 1971
Full case namePaul Robert Cohen, Appellant v. State of California
Citations403 U.S. 15 (more)
91 S. Ct. 1780; 29 L.2d 284; 1971 U.S. LEXIS 32
Case history
PriorDefendant 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
SubsequentRehearing denied, 404 U.S. 876 (1971).
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. More broadly, the ruling places a heavy burden on the justification of prior restraint in order to curtail free speech. Court of Appeal of California reversed.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
Hugo Black · William O. Douglas
John M. Harlan II · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Case opinions
MajorityHarlan, joined by Douglas, Brennan, Stewart, Marshall
DissentBlackmun, joined by Burger, Black; White (in part)
Laws applied
U.S. Const. amends. I, XIV;
Cal. Penal Code § 415

Cohen v. California, 403 U.S. 15 (1971), was a United States Supreme Court case dealing with freedom of speech. The Court overturned a conviction against 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 ultimately found that displaying a mere four-letter word was not sufficient justification to allow states to restrict free speech, and that free speech can only be restricted under severe circumstances beyond offensiveness.[1] The ruling in Cohen v. California set a precedent used in future cases concerning the power of states to regulate free speech in order to maintain public civility.[2]

Background of the case[edit]

On April 26, 1968, 19-year-old Paul Robert Cohen was arrested for wearing a jacket bearing the words "Fuck the Draft" inside the corridor of the Los Angeles Courthouse.[3] Cohen was reportedly at court to testify in an unrelated hearing when an officer noticed his jacket and requested to the judge that he be held in contempt of court. The judge refused to charge him, and Cohen was instead arrested in the corridor for disturbing the peace.[2] Cohen claimed that he wore the jacket in an act of protest against the Vietnam War.[2] 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.[2]

Lower courts[edit]

Cohen appealed the conviction to the Appellate Department of the Superior Court, which ruled that "conduct that is merely offensive is insufficient", and that according to the California Penal Code, offensive conduct must also be tumultuous.[2] 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.[2] After the California Supreme Court denied review due to three recorded dissents, the U.S. Supreme Court granted a writ of certiorari on June 22, 1970.[2] The case was argued by Melville Nimmer, representing Paul Robert Cohen, and Michael T. Sauer, representing California.[1]

The Court's decision[edit]

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.[4] 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, or if Cohen's speech attempted to disrupt the draft. Harlan claimed that expressing views on the immorality of the draft could not be construed as an attempt to disrupt the draft, and to do so would be a violation of the First and Fourteenth Amendments.[1]

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." Thus, according to Harlan, it would be unreasonable to convict someone for behavior that is deemed indecorous in a courthouse if the behavior is tolerated elsewhere, unless the law clearly makes distinctions between locations.[1]

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,as any observer offended by the speech could simply look away, and substantial privacy interests were not violated, as was the case in Rowan v. United States Post Office Department.[1]

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."[1]

As to the first theory that the speech would provoke violent reaction, the Court stated that it was not presented with any evidence suggesting that the speech was likely to cause an incitement to violence. The belief that a small number of people might react violently was not sufficient justification for regulating dissenting expression.[1]

John Marshall Harlan II

As to the second theory that states could regulate speech in order to maintain decorum in public discourse, the Court stated that while it was a closer call, the rationale was not sufficient to restrict speech. 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 marketplace.[1] Harlan famously wrote in the ruling, "one man's vulgarity is another's lyric," meaning that evaluation of what is offensive is inherently subjective, and to give states the power to adjudicate on what constitutes offensive speech would substantially damage the First Amendment.[1]

In summary, Harlan's arguments comprised 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.[1]

Blackmun's dissent[edit]

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.[1]

The second paragraph of Blackmun's dissent noted that the Supreme Court of California interpreted section 415 in In re Bushman, 1 Cal.3d 767, 463 P.2d 727[5](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. 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.[1]

Subsequent jurisprudence[edit]

The Cohen ruling was cited in many subsequent court rulings.

National Socialist Party of America v. Village of Skokie[edit]

The National Socialist Party of America v. Village of Skokie was a 1977 United States Supreme Court case. It concerned the constitutionality of an injunction against members of the National Socialist Party of America prohibiting them from holding a march in Skokie, Illinois, which had a large Jewish population.[2][6] The Illinois Supreme Court and the United States Court of Appeals for the Seventh Circuit cited Cohen v. California in their respective rulings on the case.[7] The rulings in both courts 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. In the Illinois Supreme Court ruling, the opinion states, "The decisions of that [Supreme] court, particularly Cohen v. California (1971) our opinion compel us to permit the demonstration as proposed, including display of the swastika."[8]

Specifically, the Cohen ruling was used to justify whether the actions of the Nazi marchers could be classified as "fighting words", which are among several categories of speech that are not protected by the First Amendment. In U.S. Supreme Court case Chaplinsky v. New Hampshire (1942), fighting words were defined as "those that inherently cause harm or are likely to result in an immediate disturbance."[9] In the Skokie ruling, the Court instead relied on the ruling from Cohen that stated that offensiveness was not a sufficient justification for curtailing free speech. Subsequently, the Court ruled that it was unconstitutional to prohibit the march on the grounds that a swastika was a "fighting word", as the offense it caused to the audience was irrelevant to the law.[8]

R.A.V. v. St. Paul[edit]

R.A.V. v. City of St. Paul was a 1992 United States Supreme Court 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."[10] 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."[10]

The State of Washington v. Marc D. Montgomery[edit]

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."[11]

FCC v. Pacifica Foundation[edit]

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."[12]

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.[12]

Bethel School District v. Fraser[edit]

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."[13]

Other cases[edit]

Below is a list of other court cases that cited Cohen v. California. The list below is by no means exhaustive:

  • State of Louisiana v. Meyers (1984)
  • Collin v. Smith (1977)
  • Lewis v. City of New Orleans (1974)
  • Gooding v. Wilson (1972)

Scholarly response[edit]

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.[14] Legal scholar Archibald Cox similarly argued that the expression, "Fuck the Draft", in the Cohen ruling unnecessarily lowered the standard of public debate.[15]

In his retrospective 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.[16] 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.[16]

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.[17] 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[edit]


  1. ^ a b c d e f g h i j k l "Cohen v. California". LII / Legal Information Institute. Retrieved 2018-11-14.
  2. ^ a b c d e f g h Farber, Daniel (1980). "Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Signicance of Cohen v. California". Duke L.J.: 283.
  3. ^ American Constitutional Law; Civil Rights & Liberties; Stephens & Scheb; Pg. 189
  4. ^ "Law section". Retrieved 2018-11-09.
  5. ^ Traynor, Roger (January 27, 1970). "In re Bushman". UC Hastings Scholarship Repository.
  6. ^ "NATIONAL SOCIALIST PARTY OF AMERICA et al. v. VILLAGE OF SKOKIE". LII / Legal Information Institute. Retrieved 2018-11-16.
  7. ^ "Village of Skokie v. Nat'l Socialist Party, 366 N.E.2d 347, 51 Ill. App. 3d 279 –". CourtListener. Retrieved 2018-11-16.
  8. ^ a b "Village of Skokie v. Nat'l Socialist Party of America". Justia Law. Retrieved 2018-12-13.
  9. ^ "Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)". Justia Law. Retrieved 2018-12-13.
  10. ^ a b "R. A. V. v. St. Paul, 505 U.S. 377 (1992)". Justia Law. Retrieved 2018-12-13.
  11. ^ "31 Wn. App. 745, STATE v. MONTGOMERY". Retrieved 2018-12-13.
  12. ^ a b "FCC v. Pacifica Foundation, 438 U.S. 726 (1978)". Justia Law. Retrieved 2018-12-13.
  13. ^ "Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)". Justia Law. Retrieved 2018-12-13.
  14. ^ Wright, R. George (1985). "A Rationale from J. S. Mill for the Free Speech Clause on JSTOR". The Supreme Court Review. 1985: 149–178. doi:10.1086/scr.1985.3109499. JSTOR 3109499.
  15. ^ Cox, Archibald (1976). The Role of the Supreme Court in American Government. Oxford University Press. pp. 47–48.
  16. ^ a b Krattenmaker, Thomas (2012). "Looking Back at Cohen v. California: A 40 Year Retrospective from Inside the Court". Wm. & Mary Bill Rts. J. 20: 651.
  17. ^ Cohen, William (1986–1987). "A Look Back at Cohen v. California". UCLA Law Review. 34.CS1 maint: Date format (link)

Further reading[edit]

External links[edit]