Cohen v. California, 403 U.S. 15 (1971)
States must have a better reason than a concern for generally disturbing the peace when they ban displaying an expletive in a public space.
Section 415 of the California Penal Code prohibited citizens from maliciously and willfully disturbing the peace of any individual or community through offensive conduct. Paul Robert Cohen was charged with violating this law after he wore a jacket that said "F--- the Draft" in a corridor of the Los Angeles Courthouse, near division 20. Cohen was convicted and sentenced to 30 days in jail. The state appellate court sustained the conviction, finding that the statute could be applied to individuals who act in a way that has a tendency to provoke violence or, generally speaking, disturb the peace.Attorneys
- Melville Nimmer (defendant)
- Michael T. Sauer (prosecution)
- John Marshall Harlan II (Author)
- William Orville Douglas
- William Joseph Brennan, Jr.
- Potter Stewart
- Thurgood Marshall
Harlan based the majority opinion on a vision of the First Amendment as protecting the marketplace of ideas, even if they might be vulgarly expressed at times. He argued that the slogan on the shirt should be evaluated as speech rather than expressive conduct, thus triggering a higher standard of review. Finding that no categorical exception to First Amendment protection applied, Harlan stated that the slogan was not obscene (despite the expletive) or a "fighting word" because it was not directly targeted at anyone in the vicinity. He found that the statute was overly vague in describing the conduct that it prohibited and that virtually any statute that criminalized the slogan on the shirt would be unconstitutional, except for time, place, and manner restrictions unrelated to content.
- Harry Andrew Blackmun (Author)
- Warren Earl Burger
- Hugo Lafayette Black
- Byron Raymond White
Disagreeing with the majority's classification of the slogan on the shirt as speech, Blackmun found that it should be categorized as conduct, which would trigger a lower standard of review. He also noted a recent California Supreme Court case that had interpreted the statute at issue, which he felt made reconsideration at the state appellate level necessary before the Supreme Court heard the case.Case Commentary
Speech that is distasteful or upsetting to some members of the public is not enough to remove First Amendment protections and subject the speaker to criminal prosecution. The goal of fostering a marketplace of ideas requires permitting a diversity of viewpoints and modes of expression. There was no evidence that the slogan was intended to incite violence or harm a target, and a substantial sector of the population likely would not be offended by it.
U.S. Supreme CourtCohen v. California, 403 U.S. 15 (1971)
Cohen v. California
Argued February 22, 1971
Decided June 7, 1971
403 U.S. 15
Appellant was convicted of violating that part of Cal.Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction.
Held: 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 of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26.
1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.
HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.