Cohen v California — Freedom of Expression Protects Offensive Words

In Cohen v California, 403U.S.15(1971), the U.S. Supreme Court held that the First Amendment prohibits states from criminalizing the public display of a single four-letter expletive, without a more specific and compelling reason than a general tendency to disturb the peace. The decision has been cited in numerous subsequent First Amendment cases.

Facts of Cohen v California

Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating a provision of California Penal Code §415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” He was sentenced to 30 days imprisonment.

As detailed by the Court, Cohen was arrested on April 26, 1968, after being observed in the Los Angeles County Courthouse in the corridor outside of a municipal court wearing a jacket bearing the words “Fuck the Draft,” which were plainly visible. There were women and children present in the corridor.

Cohen later testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. Notably, he did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct, in fact, commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.

In affirming the conviction, the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provokeothersto acts of violence or to in turn disturb the peace,” and that the State had proved this element because, on the facts of this case, (i)t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket. The California Supreme Court declined review by a divided vote.

Court’s Decision in Cohen v California

By a vote of 5-4, the Supreme Court reversed. “It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense,” Justice John Marshall Harlan II wrote on behalf of the majority.

In reaching its decision, the Court first highlighted that the conviction rested solely on Cohen’s speech rather than his conduct, which could be regulated if there is a sufficiently important governmental interest justifying a limitation on First Amendment freedom of speech. It went on to note that since there was no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft that his jacket reflected.

The Court then considered whether Cohen’s conviction fell within any of the narrow categories that would have allowed the government to prohibit Cohen’s speech, such as obscenity or fighting words. After concluding it did not, Justice Harlan summarized the remaining issue before it as follows:

[W]hether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below 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.

Citing that “[t]he constitutional right of free expression is powerful medicine in a society as diverse and populous as ours,” the majority answered no. Justice Harlan further wrote:

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, 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. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Dissent in Cohen v California

JusticeHarry Blackmun authored a dissenting opinion, which was joined byJustices BurgerandBlack. The dissenters argued that Cohen’s wearing of the jacket in the courthouse constitutedconductand, therefore, was not entitled to protection under the First Amendment.