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).
=*=
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.
