Cohen v. California

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403 U.S. 15 (1971), argued 22 Feb. 1971, decided 7 June 1971 by vote of 5 to 4; Harlan for the Court, Blackmun in dissent, joined by Burger and Black, and White in part. In April 1968 Paul Robert Cohen wore a jacket bearing the words “Fuck the Draft” in a Los Angeles courthouse. He was arrested and subsequently convicted for violating a California statute prohibiting any person from “disturb[ing] the peace … by offensive conduct.” The Supreme Court had to decide whether Cohen's speech was punishable because it fit one of the “exceptions” to free speech protected by the First Amendment.

The Court conceded that Cohen's expletive was “vulgar,” but it concluded that his speech was nonetheless protected by the First Amendment. It was neither an “incitement” to illegal action nor “obscenity.” Nor did it constitute “fighting words” (personally abusive epithets), for it had not been directed at a person who was likely to retaliate or at someone who could not avoid the message. Therefore, the conviction could be justified only by the state's desire to preserve the cleanliness of discourse in the public sphere. The Court refused to permit the state such a broad power, holding that no objective distinctions can be made between vulgar and nonvulgar political speech, and that the emotive aspects of speech are often as important as the purely cognitive. “It is …often true,” Justice Harlan wrote, “that one man's vulgarity is another's lyric … words [which] are often chosen as much for their emotive as their cognitive force” (pp. 25–26).

By expanding the constitutional foundation for protecting provocative and potentially offensive speech, Cohen has become a landmark decision.

Donald A. Downs

Subjects: Law.

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