COHEN VS. CALIFORNIA, 493 US 15 (Freedom of Speech.)

COHEN VS. CALIFORNIA, 493 US 15 (Freedom of Speech.)

Nature: APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA,

Keywords: Freedom of Speech

Summary: Cohen v. California, 403 U.S. 15 (1971), was a United States Supreme Court case dealing with freedom of speech. The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket in the public corridors of a courthouse that displayed the phrase, "Fuck the Draft".

Brief Fact Summary. The Defendant, Cohen’s (Defendant) conviction, for violating a California law by wearing a jacket that had “f— the draft” on it was reversed by the Supreme Court of the United States (Supreme Court) which held such speech was protected.

Synopsis of Rule of Law. Emotive speech that is used to get attention is protected by the constitution.

Facts: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.

Issue: WON California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?

Ratio: Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

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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. 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.

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, 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."

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 marketplace.

"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."[2]

"[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."[3] In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric."[4]

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.

Ruling: 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. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be REVERSED.

NOTES:

1.The statute provides in full:

Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.

2.

The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal.3d 767, 463 P.2d 727 (1970), it is "not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction." Post at 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated:

[One] may . . . be guilty of disturbing the peace through "offensive" conduct [within the meaning of § 415] if, by his actions, he willfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal.App.3d 94, 101, [81 Cal.Rptr. 503].)

1 Cal.3d at 773, 463 P.2d at 730.

We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court's approving citation of Cohen.

3.

It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so, and Cohen was arrested by the officer only after he emerged from the courtroom. App. 119.

4.

In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing "the peace or quiet . . . by loud or unusual noise" and using "vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner." See n. 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the "offensive conduct" portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients.

5.

The amicus urges, with some force, that this issue is not properly before us, since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute, as thus construed, appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappropriate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and be cause the answer to appellee's argument seems quite clear, we do not pass on the contention that this claim is not presented on this record.